Beyond the Progress of the Useful Arts: The Inventor as Useful Citizen
28 Pages Posted: 2 Aug 2022
Date Written: 2022
There is a robust scholarly discussion about whether and how the United States patent system fulfills its constitutional directive to promote the progress of the useful arts. There is also increasingly a discussion that investigates extra-constitutional roles for the patent system, from signaling and credentialing to self-expression and bolstering nationalism. This Article expands our pluralistic vision of the patent system by exploring the ways in which the patent system has served to foster and identify what I call 'useful citizens', with the ability to participate in civic duties. As legislators and bureaucrats experimented with patent laws and practices in a struggling post-colonial country, they came to define the inventor-patentee in unique ways. A patent certified the originality and independent thought of the inventor, abilities defined as crucial for participation in democratic self-governance. I argue that this unacknowledged sociopolitical role for patents explains in part the persistence of the US patent system in the face of the long-running critique of its efficacy in promoting innovation and economic growth. Further, I argue that the ideology of inventor as useful citizen reveals the role of patents and invention in the historic restriction of full citizenship rights in the United States to white men and the continuing stakes of patent system participation as patents continue to be linked in the public imagination to American national identity.
To make this argument, this Article develops a comparative legal history among the early United States, the Republic of Texas (1836-46), and the Confederate States of America (1861-65), contrasting the US patent system to the patent systems in each of these imitative democracies formed by former US citizens. I analyze how these countries, engaged in desperate battles for survival, devoted scarce resources to establishing a patent office, briefly tracing the constitutional, legislative, and bureaucratic history of the Texas and Confederate patent systems. In each case, politicians looked to the US patent system as a model even as other patent systems, such as those of Britain and Mexico, offered examples seemingly advantageous to these cash-strapped and under-industrialized nations. I argue that the form each new patent system took demonstrated that the white men who created it believed, based on their US experience, in the inventor as useful citizen, and that the political context of these start-up republics explains their shared decision to implement patent systems that credentialed inventors as well as incentivized invention. Returning to US history, I demonstrate how using patents to identify useful citizens was linked to race and gender restriction of civil rights. In conclusion, I consider how the continued link of patents and citizenship offers possibilities for both the inclusive and exclusive mobilization of patents as group credentials.
Keywords: patent, intellectual property, race, gender, useful citizen, civil rights, inventor, Republic of Texas, Confederate States of America
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