Abstract

Excerpted From: Kara W. Swanson, The Border Politics of Patents and the Immigrant Inventor, 103 Texas Law Review 1555 (June, 2025) (148 Footnotes) (Full Document)

In the twenty-first-century United States, patents--government grants of exclusive rights to the originator of a new and useful invention--are part of the politics of the border. Patents are relevant to the U.S. border in at least three ways. First, patents, as federal government grants limited in effect to U.S. territory and also the subject of international agreements, are designed to control the flow of ideas and technologies across borders. Second, patents are used to measure the relative success of the U.S. in a global “race” for migrating talent. Third, patents are used as political tools in debates about who is most worthy of becoming American, serving as proxies both for the inventive ability of immigrant groups and the capability of would-be immigrants to assimilate.

This Essay focuses on the third form of the border politics of patents, in which the “immigrant inventor” is a key category. U.S. patents are used to identify immigrants who belong to this category and to define a subset of inventors: the foreign-born. This border politics of patents arises out of the belief that Americans are particularly inventive, and that inventiveness is a proxy for the capacity to perform the duties of U.S. citizenship, another way of dividing those “suited for citizenship” from those “unfit for naturalization.” In previous work, I have traced the origins of such beliefs to the nineteenth century. These beliefs made patents into political tools used in the late nineteenth and early twentieth century by white U.S. women and Black U.S. women and men advocating for full citizenship rights, including the right to vote. Immigrants, as groups seeking full legal personhood as well as inclusion within the identification ““American,” have also used patents as political tools. They and their allies found that the “immigrant inventor” can be mobilized to inform debates about who is eligible for immigration and naturalization.

Twenty-first-century Americans identify inventors as one of the occupational categories considered most representative of the U.S. national identity, that is, “quintessentially American.” U.S. citizens consider inventiveness to be a quality that demonstrates readiness to join the U.S. body politic in ways that, for example, the ability to practice medicine or work on a farm do not, even though immigrants make critical contributions to the U.S. economy in healthcare and agriculture. The most direct way of claiming the identity of “inventor” is to become a patentee, certified as the inventor of something new, useful, and non-obvious. With heightened public interest in U.S. immigration law and policy in the first decades of the twenty-first century, researchers have turned to patent records to identify and count immigrant inventors. Patents as markers of the most “American” immigrants are part of the current politics of the U.S. border. This Essay argues that the origins of this aspect of the border politics of patents are linked to discredited racial science, an association that should lead us to scrutinize how and when patents are mobilized in support of the suitability of groups for citizenship.

In Part I, this Essay uses historical research to uncover the emergence of the “immigrant inventor” as a politically salient category during the immigration debates of the early twentieth century, when the U.S. was switching from borders loosely controlled by the states to restrictive federal immigration laws. This transition culminated in the Immigration Act of 1924, which established national origin quotas that remained in place until 1965. In Part II, this Essay argues that the salience of the immigrant inventor was founded on a combination of new racial science and preexisting beliefs about the linkages among patents, inventiveness, and U.S. citizenship. It highlights how turn-of-the-twentieth-century ethnologists and eugenicists used inventiveness to distinguish among what they called human “races” and develop a hierarchy of peoples from most “savage” to most “civilized.” As U.S. native-born elites used racial science to advocate for racialized immigration restrictions, immigrant inventors became part of public discussions. In Part III, this Essay connects these early-twentieth-century arguments to twenty-first-century border politics by demonstrating the persistence of the “immigrant inventor” as a politically relevant category. It argues that this persistence reflects the troubling recurrence of claims that national origin and/or ethnicity differentiates human groups based on mental ability.

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U.S. residents have gone from ignoring the birth country of U.S. inventor-patentees like Bell, to celebrating immigrant inventors like Pupin, to measuring immigrant inventors by counting U.S. patents granted to the foreign-born. These changes reflect not changing patent laws, but rather changing immigration policies. Identifying immigrant inventors became relevant once the U.S. began to turn to immigration restrictions and has remained part of the politics of choosing among potential immigrants. This Essay has argued that the attention to the “immigrant inventor” as a political category had its origins in turn-of-the-twentieth-century racial science, and its persistence reflects the persistence of attempts to base immigration policy on racialized sorting of human groups based on innate ability. As evolutionary biologist Stephen Jay Gould observed, the recurrence of attempts to justify such sorting has been driven by politics rather than the emergence of new scientific research. Gould, who devoted decades to debunking biological determinist arguments about human groups, noted that such recurrences are ““cyclical.” The association of inventiveness with Americanness, however, has proven constant. The participants at the patent centennial celebration in 1891, the eugenicist Laughlin testifying before Congress in 1924, and the respondents who identified quintessentially American occupations in the 2010s all agreed: U.S. residents place a high value on inventive ability and consider “inventor” to be an occupation more reflective of U.S. national identity than almost any other. The combination of this constant belief and the cyclic recurrence of racial science in immigration debates has resulted in a border politics of patents that give “immigrant inventors” a greater role than their numbers might suggest is warranted.

Are there lessons to be gleaned from recognizing this form of the border politics of patents? Does it matter that Bell's foreign birth has been both largely ignored and occasionally emphasized in support of immigration reform? After all, although Bell used his patents to found the long-lasting American Bell Telephone corporate empire, his inventiveness did not make him a markedly superior U.S. citizen. Bell used his fame to promote eugenic ideas that remain deeply troubling to the U.S. deaf community and retreated to Canada to live out his days.

Bell, as inventor and innovator, and as citizen and celebrity, is certainly worth remembering. Pupin, too, although no longer a celebrity, is a rewarding object of study. But it is also worth asking whether and how one or two highly successful immigrant inventor-patentees--or even the hundreds of immigrants who have received U.S. patents--should be more politically relevant than thousands of immigrant health care workers or farmers. The lone inventor hero--Bell foremost among them--has been used to obscure the dominance in the U.S. patent system of large multinational corporations and the realities of simultaneous and group invention. The immigrant inventor, used as a measure of immigrant contribution to American society and economy, similarly obscures the multiple other skills given preference by immigration laws and the breadth of immigrant economic contributions. Inventor-patentees remain relatively rare among immigrants, just as among the general population. This historical review reminds us that when the ““immigrant inventor” becomes part of U.S border politics, the debate, whether explicitly or implicitly, may be slipping into arguments about whether ability--to originate, to invent, to contribute, to live as a productive citizen ready to vote and take office--is more prevalent in some groups than others as a matter of immutable biology. Discussions of the “immigrant inventor” can be exciting, inspiring, and useful to understand U.S. innovation. They may also signal a “cyclic recurrence” of discredited racialized thinking about human groups and abilities, a warning to avoid basing legal reform on the latest version of, in Gould's phrase, the “mismeasure of man.”

Professor of Law/Affiliate Professor of History, Northeastern University, Boston, MA; B.S. Yale University; M.A./J.D., University of California, Berkeley; Ph.D., Harvard University.