This Article uses historical methodology to reframe persistent race and
gender gaps in patent rates as archival silences. Gaps are absences, positioning
the missing as failed non-participants. By centering Black women inventors and
letting the silences fill with whispered stories, this Article upends our
understanding of the patent archive as an accurate record of U.S. invention and
reveals powerful truths about the creativity, accomplishments, and patent
savviness of Black women and others excluded from the status of “inventor.”
Exposing the patent system as raced and gendered terrain, this Article argues
that marginalized inventors participated in invention and patenting by
situational passing. Passing, while an act of creative adaptation, also entails
loss. Individual inventors gave up the public status of inventor and often also the
full value of their inventions to white men falsely identified as inventors on
patent applications. This Article rewrites the legal history of the true inventor
doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. Marginalized
inventors adopted this practice, risking the sanction of patent invalidity, in order
to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture
that constrained marginalized inventors. The Article further argues that false
inventors were used as a means of appropriating the inventions of marginalized
inventors. Cumulatively, these practices amplified patent gaps, systematically
overrepresenting white men in the patent archive and thus reinforcing the
biases marginalized inventors sought to avoid. This intersectional analysis
brings patent law into broader conversations about systemic racism and sexism
and provides needed context to the current effort to close patent gaps.