December 8, 2020
When President Barack Obama signed the America Invents Act in 2011, he was surrounded by a group of people of diverse ages, genders and races. The speech he delivered about the legislation, which changed the technical requirements for filing a patent, highlighted this diversity by emphasizing that today anyone can become an inventor in the United States.
Despite Obama’s optimism about women and people of color inventing and patenting the nation’s new and innovative technologies, both groups still lag considerably behind their white male counterparts in being recognized as inventors and owning patents, in the U.S. and globally. Women and people of color possess the same intellectual capacities as their white male counterparts. Yet empirical studies consistently show that patent law overwhelmingly rewards white men for their labor and skill.
This is in part because women and people of color join science, technology, engineering and math (STEM) fields in much lower numbers than white men. In 2017, women made up over half of the workforce, but held only 29% of STEM jobs. But even women and people of color who go into STEM fields invent and patent far less often than their white male counterparts.
The question is why.
As a researcher who studies race, rhetoric and intellectual property law, I can say that the U.S.‘s race and gender invention and patent gap results partly from a failure of imagination. The stories that people tell about invention in the U.S. continue to focus on white men – the Benjamin Franklins, Thomas Edisons and Elon Musks – without affording women and people of color the same larger-than-life status.
National myths about inventorship and political barriers to patenting set up women and people of color for failure by normalizing entrenched discrimination even when they join STEM fields.
The stories we tell about inventors
Critical race theorists show how legal terms and everyday narratives can look as if they create a level playing field while allowing implicit bias to thrive. In my new book, “The Color of Creatorship,” I look at how intellectual property law has evolved racially over 200 years.
Black and brown people are no longer legally prohibited from owning patents and copyrights, as they were in the 1700s and 1800s. However, seemingly colorblind patent and copyright laws continue to practically favor white male inventors and creators by using legal definitions and tests that protect inventions and creations that tend to match Western conceptions and expectations of, for instance, expertise and creativity.
From the now cliché “think outside the box” to Apple’s slogan “think different,” innovation, a central component of invention, is associated with breaking limits. Yet Americans have largely failed to change the ways that they think and talk about invention itself.
Even Obama’s speech about the America Invents Act begins by explaining how Thomas Jefferson epitomized the nation’s mythic spirit of invention and innovation. Yet Jefferson held the racist view that Black people lacked the capacity to be truly imaginative creators, let alone citizens of the nation. Breaking limits, it turns out, is most often a privilege afforded to white people.
The current historical moment, in which facts are negotiable, white nationalism is on the rise and the nation is weathering a pandemic, is an important time to redefine American mythologies of invention. Celebrating the inventive capacity of women and people of color matters. Recognizing their innovative genius, in films like “Hidden Figures,” helps transform what had been marginalized stories into narratives that are central to history.
Obama’s reference to Jefferson reinforced powerful, limiting conventional wisdom about invention and innovation. Popular cultural narratives frequently invoke the contributions of white men while erasing those of women and people of color. For example, the History Channel’s The Men Who Built America focuses on the inventions and innovations of Cornelius Vanderbilt, John D. Rockefeller, Andrew Carnegie and Henry Ford, business titans who achieved tremendous success via dubious ethics.
The show’s use of the Great Man theory of inventorship and entrepreneurship leaves out the many women and people of color, including Thomas Jennings, Elijah McCoy, Miriam E. Benjamin and Sarah E. Goode who, as legal scholar Shontavia Johnson shows, not only invented and patented during the same period but, as legal scholar Kara Swanson shows, used their work to lobby for suffrage rights for women and people of color. https://www.youtube.com/embed/gQo1cZtEpgY?wmode=transparent&start=0 A brief listing of notable Black American inventors.
Attacking Asian innovation
America’s white-male-centered imaginings of inventorship and patenting extend beyond the nation’s borders, in xenophobic pronouncements frequently directed at Asian nations. Apple co-founder Steve Wozniak recently proclaimed: “Success in India is based on studying, having a job … where’s the creativity?”
Similarly, President Trump claimed to be “protecting the innovations, creations, and inventions that power our country” from Chinese graduate students, who are part of a racial group that has long boosted America’s economy, fueled global innovation and offered pandemic assistance.
Refusal to recognize diversity in inventorship is a bipartisan affair. Then-presidential candidate and current President-elect Joseph Biden made a shocking assertion about innovation in China: “I challenge you, name me one innovative project, one innovative change, one innovative product that has come out of China.”
Inventing new ways to talk about invention
Racist, sexist and xenophobic inventorship and patenting norms are not immutable facts. They are practices built on exclusionary stories and feelings, transformed into familiar myths, including that of the American dream. These exclusionary stories frequently function as dog whistles that have long been used to fuel white anxieties about people of color and men’s anxieties about women. They make it difficult for women and people of color to prove they have the expertise needed to invent and patent.
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However, as films like “Hidden Figures” emphatically show, it’s possible to tell inclusionary stories. I argue that telling them is an ethical act because it ensures that society recognizes the genius of people of all identities – race, gender, nationality, religion, ability, age – in contributing to invention and innovation, current and historical.
Rhetoricians frequently proclaim that “words mean things.” This is certainly true when imagining who has the capacity to perform certain tasks, such as inventing and patenting. At a moment in which the U.S. faces threats to democracy, environment and economy, it is more important than ever to invent new ways of talking about invention. People of all identities deserve the opportunities to create and own their innovative solutions for solving the world’s most pressing problems. More importantly, they deserve to be treated as full citizens in the realm of intellectual property and innovation.