Commercialization and Institutions
Panelists
Shontavia Johnson
Associate Vice President for Entrepreneurship & Innovation, Clemson University
Kara W. Swanson
Professor of Law and Affiliate Professor of History, Northeastern University
Moderator
Crystal Marie Moten
Curator of African American History, Division of Work and Industry, National Museum of American History
How have Black inventors and entrepreneurs navigated the patent and commercialization processes in the United States?
If you had walked into the display room of the US Patent Office in the nineteenth century, you would have come away thinking that White men were the only inventors in the country. Both before and after the US Civil War, Black Americans faced barriers to accessing the patent system. Enslaved inventors were unable to receive patents, leaving their inventions to be patented by their enslavers or to circulate without patent protection. At the same time, some free Black inventors purposefully concealed their identities to avoid prejudice at the Patent Office and in the marketplace. The challenges have changed since then, but obstacles remain. Panelists Shontavia Johnson and Kara W. Swanson considered how institutions within the invention ecosystem have responded to Black inventors past and present. They also explored contemporary Black entrepreneurs’ access to networks of capital and expertise and asked what reforms might be needed to improve patenting and commercialization rates for Black innovators moving forward.
Opening with an overview of the US Patent Office and its history, Swanson explained that the patent system historically has hidden or erased Black invention. The antebellum Patent Office denied patents to enslaved Black people, and Whites routinely appropriated and stole the patentable ideas of the Black persons they had enslaved. As Swanson noted, it is important to distinguish between the formal legal barrier issued in 1858 that denied enslaved people the right to patents and the reality—long predating the 1858 statement—that systematic and widespread barriers to patenting existed well beyond the patent office. To date, no enslaved person is known to have sought out a patent—though given the wide range of their experiences, Swanson observed, it is theoretically not impossible that someone might have done so. And while free Black people, at least in principle, could obtain patents, the process remained fraught with difficulties, leading some inventors to obscure their own identities to avoid prejudice. Black carpenter Henry Boyd invented a bedstead in the 1830s but chose to hide his role, for example, by allowing a White man, George Porter, to pretend to be the inventor for the purpose of securing a patent (James 1990). Similarly, Black inventor Ellen Eglin reportedly sold her clothes wringer design to a White investor, who commercialized it (Smith 1891). Even when Black inventors did overcome discriminatory barriers and obtained patents in their own names, the records in the Patent Office remain silent as to the racial identity of the named inventors (Baker 1902; Baker 1913). Despite the ongoing Herculean efforts of researchers today (Cook 2007), we will never know the full extent of Black invention and creativity in the history of North America.
While it erased or hid Black identities, the patent system also helped reveal and draw attention to Black inventors. Swanson here observed that White supremacists had long believed Blacks lacked the capacity for original thinking and could only imitate, and they had used this argument to deny Black people the right to vote. But early civil rights activists turned this claim on its head, holding up examples of Black patentees as government-certified proof that Black people could indeed think independently.
From this perspective, then, the patent system functioned as a powerful refutation of arguments that sought to deny Black people voting and other civil rights. Patents provided evidence that a given individual was capable of original thought and had contributed to society. In the hands of civil rights activists, patents served as tools of persuasion, Swanson argued, helping Black people gain ground in the struggle for equity, respect, and economic opportunity. She pointed out how W. E. B. DuBois and his employer, the National Association for the Advancement of Colored People (NAACP), put their energies behind Henry E. Baker’s The Colored Inventor (1913), a pamphlet discussing the history of Black inventors in the United States. They understood just how persuasive these examples of patentees, however incomplete, could be in the argument for Black equality (Swanson 2020).
More recently, Patricia Carter Sluby, a Black chemist and former USPTO employee-turned- researcher, spent decades working to identify Black and woman patentees—critically important work that she undertook so that the world might learn “of African American problem solvers who beat the odds and turn obstacles into opportunities” (Sluby 2004; Sluby 2011; Swanson 2020).
The patent system thus served both to hide and to reveal Black invention, Swanson stated: it both hindered and helped efforts to achieve civil rights and equity. Even today, she added, a link can be drawn between patents and civil rights, as what it means to be American is debated within national immigration discussions. The ideal American continues to be associated with the trope of inventiveness (Akcigit, Grigsby, and Nicholas 2017; Bernstein et al. 2019). She concluded that any meaningful reforms to the patent and commercialization processes must keep in mind both the obstacles that patenting has posed to Black and other marginalized inventors and the difference that patents have made by allowing many of these same inventors to be seen as models of their race or demographic group, summoning White institutions and powerbrokers to grant these communities their due civil rights.
Panelist Shontavia Johnson opened with a story about her grandmother, one of the many Black Americans who invented without a patent. As the mother of twelve children, Janie Williams Jackson designed and made teething necklaces for babies, helping to solve a parenting challenge that she and other mothers regularly faced: teething babies in pain. Commercialization was not her goal when she invented these necklaces, Johnson recalled. Jackson just wanted to solve a common parenting problem.
Johnson offered this example as an entry into a discussion of the commercialization process as Black inventors today experience it. How we define invention, innovation, and commercialization affects who is perceived as an inventor and which communities receive support and investment. Noting that the Department of Commerce in her own state of South Carolina defines innovation as “the relentless pursuit of transformational ideas,” Johnson suggested that traditional definitions of these terms could benefit from expansion or revision. The Lemelson Center’s definitions are not above criticism, either, she noted.
To invent is to create a unique material, device, process, or method; to innovate is to answer an important customer or societal need. An invention is a way of doing something differently, while an innovation is a way of scaling up one or more inventions in a way that creates value. — From the Lemelson Center’s Strategic Plan, 2016–2020, p. 4.
What do definitions like these mean for a woman like Janie Williams Jackson? Not enough, Johnson suggested. With their focus on creating value, these definitions—and the Western capitalist assumptions that underlie them—tend to obscure the contributions of inventors who created, designed, and produced not for profit (or not primarily for profit) but to help their communities survive. Innovation defined in a narrowly capitalistic sense is not just expensive and inequitable, Johnson argued. It also leaves us with a limited definition of what counts as a societal contribution and of who should be regarded as creative or entrepreneurial.
Even when we define innovation in more expansive terms—one definition might be “an answer to an important customer or societal need,” Johnson suggested—Black entrepreneurs still encounter roadblocks when they seek to commercialize their inventions. Lack of representation is one barrier. Only 1.7% of all intellectual property (IP) attorneys in the United States today are Black (American Intellectual Property Lawyers Association 2019). Black inventors will likely have difficulty finding an attorney who understands the cultural realities they face or fully appreciates the value of inventions inspired by lived Black experiences. Within the venture capital arena, Johnson continued, Black entrepreneurs are dramatically underrepresented as well. Just one percent of venture capital-backed company founders are Black, and Black women receive even less: only .0006% of all venture capital funding between 2009 and 2017 went to Black women—even though they provided a high return on investment (Kniggendorf 2019; Digital Undivided 2020). Clearly, more intersectional data in this area is needed. Johnson noted that while she can find innovation data about Blacks and about women, data on Black women and their unique experiences are harder to come by and represent a major gap in current analyses.
The patent numbers at universities do not paint a rosier picture. Between 1969 and 2012, HBCUs received a total of just 101 patents combined. By comparison, the University of California received 524 patents in 2017 alone (ThePLUG 2019). Diversity metrics for scientists and engineers at high-tech firms such as Google and Microsoft are similarly dismal, Johnson observed (Nager et al. 2016; Cook 2019). At every stage of the commercialization process, Black entrepreneurs face lack of representation and disparities in opportunity.
A related roadblock is cost. As Johnson pointed out, innovation in the twenty-first century is expensive. For both phases of commercialization (phase one: invent and protect; phase two: manage, exploit, and police), costs can rise prohibitively high, discouraging inventors who lack access to capital. The average cost from start to finish for a solo-individual invention in Phase 1 is nearly $60,000. For a corporation or large entity, the cost is around $120,000 (American Intellectual Property Lawyers Association 2015). Some support is available for inventors who make it onto the faculty at major research universities, where technology transfer offices can provide aid; but becoming a faculty member at one of these institutions is a highly selective and competitive process, out of reach for all but the most elite and well-connected candidates. Within phase two, the average cost to start a new small business is $30,000, another potentially prohibitive amount (Scott 2009). Additional costs accrue along the way, adding to the financial burden. And inventors who must defend their IP in court face almost insurmountable financial burdens: the average cost of patent infringement litigation in 2019 was between $700,000 and $4 million, according to the American Intellectual Property Law Association.
Historically, the patent system served both to hide and to reveal Black invention. It both hindered and helped efforts to achieve civil rights and equity. — Kara W. Swanson
The one place where financial support for commercialization does exist, Johnson noted, namely the venture capital (VC) arena, does not provide sufficient help to resolve the broader disparity. The VC field remains focused on profit above other measures of success, with most funders seeking projects that have the potential for 100 or 1,000 times the return on investment (ROI). This focus on extreme ROI means that Black inventors with community-focused inventions attract few funders. Exceptions to this trend exist, of course; Johnson noted Magic Johnson’s investments in the technologies of Black inventors, as well as his work planting Black-owned entrepreneurial businesses in Black neighborhoods. But funding gaps continue to pose obstacles to many Black inventors across the commercialization spectrum.
What can be done? Panelists agreed that reparations should be part of some discussions about barriers to commercialization. Johnson and Swanson noted that the patent and judicial systems allow us to ascertain with some accuracy how much money the Black community lost when their inventions were stolen or otherwise appropriated. A conversation about reparations could begin with the acknowledgment that putting a price on historical inequities is, at least in the patent space, truly possible. “We can calculate the dollar value of that technology,” Johnson said.
Swanson gave the example of “the NED project,” a student-led restorative justice effort at Northeastern University Law School. In the 1850s, slave owner and Mississippi lawyer Oscar Stuart tried to obtain a patent on a double cotton scraper invented by his enslaved blacksmith Ned. Attorney General Jeremiah Black denied Stuart’s claim, building from the Dred Scott decision of 1857 to argue that “a machine invented by a slave cannot be patented.” Stuart still profited from Ned’s invention, advertising it as the “Stuart Double Plow and Scraper” and putting it on sale for $40 per plow (Johnson 2017; Frye 2018; Johnson 2019; Swanson 2020). What would restorative justice look like for blacksmith Ned’s legacy? We could explore awarding a posthumous patent to Ned, Swanson suggested: this gesture would have symbolic importance but would not help the Black community in a material or concrete way. Or we might think, instead, about a reparations fund for contemporary marginalized inventors in the community. This money could provide tangible help with patent and commercialization costs.
Johnson voiced her support for reparations discussions in these instances as well, noting that the theft of intellectual capital is one area where restorative justice could be an idea whose time has come. We need to begin thinking about how to award grants or funding back to the Black community in the invention space, she said. But the process will never be simple. Inequities past and present continue to dominate the innovation ecosystem, and sometimes the search for justice can seem overwhelming.
Johnson concluded by advising webinar participants to “pick a struggle,” that is, to take on just one part of the larger battle for equity and see that one goal through to fruition, building from your personal passion. Achieving lasting equity is a monumental task, she said. “But you eat an elephant one bite at a time.”
Panelists recommended the following opportunities to create change:
- For thought leaders and scholars in the invention arena, think about expanding definitions of “invention” and “innovation” so that these terms are not solely bound to patents, efficiency, and the bottom line. Include more vernacular knowledge in the discussion, as well as engagement with marginalized communities—Magic Johnson’s investments in Black-owned businesses offer examples of what might be done to encourage more inclusive understandings of invention.
- Funders in the innovation space could revisit what scalable entrepreneurship looks like and how success might be newly measured. Venture capital firms have figured out how to fund unpatented inventions in software and blockchain technology; they should be able to invest in unpatented community-based inventions, as well.
- For researchers and scholars of invention, consider ways to collect more data on Black inventors and their contributions, including demographic and intersectional data on patent applicants, patent examiners, patent attorneys, judges, venture capitalists, and start-up founders. Measure who receives—and does not receive—venture capital dollars.
- Once collected, this type of data could be used to encourage legislators and corporate leaders to devise regulatory frameworks and incentive structures that funnel more venture capital dollars to Black inventors. Deploying this aggregate data carefully at the firm and institution levels would help ensure equity and accountability while encouraging company safeguards and preventing discrimination in individual patent cases and other funding decisions—all within the rapidly changing commercialization space.
- For business leaders and CEOs, consider the intersectional challenges and issues within your employee culture—including the experiences of Black women, immigrants, LGBTQ+ individuals, people with disabilities, and more. Diverse teams produce better ideas and outcomes, so embracing greater inclusivity makes good business sense while helping address equity issues.
- More broadly, for leaders and investors at every stage of the commercialization process: consider how to create or strengthen your own DEI incentives and accountability measures for the institutions you support or oversee. This suggestion applies equally to university technology transfer offices, research and development corporations, venture capital firms, and philanthropic funders. The potential for earning 100 times the return on investment should not be the only metric for investing in an idea. At the same time, those Black inventors who want to pursue significant profits should have the support and partners they need to do so. Opening the funding pipeline to more Black entrepreneurs can help local communities, in part, by creating new business opportunities.
See the bibliography for sources cited above.
Circular image above: Working with Quirky and GE, Garthen Leslie invented the Aros smart air conditioner.