Brian L. Frye, University of Kentucky College of Law, is publishing Invention of a Slave in the Syracuse Law Review. Here is the abstract.
On June 10, 1858, the Attorney General of the United States issued an opinion concluding that a machine invented by a slave could not be patented, because neither the slave nor the slave owner could make an oath or affirmation that they were the inventor of the machine, as required by the Patent Act of 1836. The Attorney General’s opinion caused the Patent Office to deny at least two patent applications, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. Notably, the Confederate States Patent Act of 1861 provided, inter alia, that slave owners could patent inventions and discoveries made by their slaves. The Attorney General’s opinion seems to have relied on the fact that a slave was not a legal person and therefore could not make an oath or affirmation. But it may also have reflected an ideological dispute over whether slave owners should be entitled to benefit from the intellectual labor of their slaves. Ironically, the Attorney General and the Commissioner of Patents used the ideology of slavery to prevent slave owners from patenting the inventions of their slaves, and the Confederate States of America ignored the ideology of slavery in order to enable slave owners to patent the inventions of their slaves. In this way, a largely forgotten patent claim may offer a unique perspective on the politics and ideology of slavery in the antebellum United States.Download the article from SSRN at the link.