Centering Black Women Inventors: Passing and the Patent Archive

Abstract

This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women inventors and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of U.S. invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of “inventor.” Exposing the patent system as raced and gendered terrain, this Article argues that marginalized inventors participated in invention and patenting by situational passing. Passing, while an act of creative adaptation, also entails loss. Individual inventors gave up the public status of inventor and often also the full value of their inventions to white men falsely identified as inventors on patent applications. This Article rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non- inventors to receive patents as a convenient form of assignment. Marginalized inventors adopted this practice, risking the sanction of patent invalidity, in order to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained marginalized inventors. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. Cumulatively, these practices amplified patent gaps, systematically overrepresenting white men in the patent archive and thus reinforcing the biases marginalized inventors sought to avoid. This intersectional analysis brings patent law into broader conversations about systemic racism and sexism and provides needed context to the current effort to close patent gaps.

Keywords: patent law, patents, Black inventors, Black women inventors, passing, legal inequality

JEL Classification: O34, K2