Congratulations to Western State Professor of Law, Sandra Rierson, on the publication of her important co-authored article, “Patent Reparations: HBCUs Paving the Road to Recovery from Racial Disparities in the United States Patent and Trademark Office,” in the Howard Law Journal! Co-written with Mimi Afshar, the piece traces the historical roots of systemic racial exclusion in the U.S. patent system and makes a compelling case for reparative action. This powerful work adds to the national conversation on equity in innovation and underscores the urgent need to dismantle long-standing barriers in intellectual property law. We are proud to see Professor Rierson’s work making such a meaningful impact.
Read the article, here.
Abstract:
The American patent ecosystem, which is almost as old as the country itself, has fostered persistent racial disparities in wealth in the United States. Enslaved people did not own their own labor and could not register patents or prosper from their inventions, which were often stolen from them. After the Supreme Court’s decision in Dred Scott v. Sandford, even free Black people were thwarted from obtaining patents for their inventions because they were not considered citizens of the United States. The Civil War and Reconstruction nullified Dred Scott, but this period was quickly followed by Jim Crow and the legal doctrine of “separate but [un]equal” across much of the United States, which further impeded Black people from accumulating wealth or political power. As a result, they remained hamstrung in their ability to exploit their inventions by obtaining patents. Even today, due to systemic racism in the United States – the modern shadow of slavery and Jim Crow – Black people are underrepresented in the United States Patent and Trademark Office (USPTO), both as inventors and members of the patent bar. Societal inequities and racial discrimination continue to prevent Black people from fully participating in the nation’s innovation ecosystem.
The USPTO must play a key role in recovering and restoring the rights of Black Americans to create and own intellectual property and profit from it. Reparations, an essential step in achieving restorative justice, are due. Repairing the damage done to Black people by past patterns of de jure and de facto legal discrimination requires a multi-pronged approach. The USPTO has taken steps in the road to recovery, significantly by establishing patent and trademark clinics at law schools throughout the country, especially at historically Black colleges and universities (HBCUs). This article demonstrates the need for restorative justice in the USPTO. It also examines the impact of the USPTO’s current reparative efforts and makes recommendations for further progress.