Today, we ask, "Who should own a patent?" The
University of Houston's College of Engineering
presents this series about the machines that make our
civilization run, and the people whose ingenuity
created them.
I'm troubled by the patent
and copyright system. It lets one person invent
something and another one own the patent. Inventors
can sell patents. Survivors can inherit them.
Employers can own their employees' inventions.
Then, too, one person often files a patent when
others have provided key ideas.
An event from 1857 puts all that in a particularly
ugly perspective. That year, a plantation owner
named Oscar Stewart wrote the secretary of the
interior. His slave, Ned, had invented a new, and
very effective, cotton scraper. Stewart wanted to
patent it.
Historian Portia Jones explains that Stewart walked
around the patent office because he knew the
commissioner of patents was a Northerner. He might
not understand about masters and slaves.
But the secretary of the interior went straight to
the patent office anyway. And they wrote back
saying Ned would have to swear an oath that he was
a citizen before they'd give him a patent. Of
course, as a slave, he was not a citizen.
Stewart blew up when he read that. He was certainly
not so foolish as to think Ned could hold a patent.
After all, Ned was just property! Stewart obviously
meant the patent for himself.
A nasty North-South issue had landed in the
attorney general's lap. So he made a draconian
ruling: henceforth, patents would not be given for
slave inventions -- neither to master nor to slave.
So Stewart went into business making Ned's cotton
scraper without the luxury of patent protection. No
matter, he made a pile of money anyway. And his
advertising said openly that the scraper was "the
invention of a Negro slave -- thus giving the lie
to the abolition cry that slavery dwarfs the mind
of the Negro."
Jefferson Davis, soon to
be president of the Confederacy, ran afoul of that
ruling a year or so later. His brother had a slave
named Benjamin Montgomery. Montgomery was a smart
mechanic who'd invented a propeller to replace
steamboat paddle wheels. Now it couldn't be
patented! When the South broke away from the Union,
Davis saw to it that Confederate patent law clearly
made slave inventions into the property of their
masters.
The Civil War ended that, but the larger matter of
one person owning another's creative output
remained. We can hardly argue against rewarding
invention. But how far from the inventor those
rewards often land! A friend, an English teacher
giving a TV course, recently had to pay a book
company to let him quote from its edition of John
Donne's poetry. And Donne has been dead since 1631.
I'm troubled by the words intellectual
property. For invention has no material
being. When you try to treat it like material
property, you create contradictions. In the end,
you can no more own ideas than Stewart or Davis
could own -- the people who created them.
I'm John Lienhard, at the University of Houston,
where we're interested in the way inventive minds
work.
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