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Excerpted From: Olivia Constance Bethea, The Unmaking of “Black Bill Gates”: How the U.S. Patent System Failed African-American Inventors, 170 University of Pennsylvania Law Review Online 17 (2021) Online 17 (2021) (112 Footnotes) (Full Document)


OliviaConstanceBetheaIn 2016, Beyoncé released her hit single Formation with the fan-favorite line: “You just might be a Black Bill Gates in the making .... I just might be a Black Bill Gates in the making.” Formation became the title of her next world tour, grossing more than $250 million and increasing her then net worth of $290 million (which has since ballooned to over $400 million). While the “Black Bill Gates” paradigm encouraged conversations about generational wealth among African-Americans, the trope curiously exposes that there is no Black Bill Gates.

In some ways similar to Bill Gates, Beyoncé is a remarkable, self-made businessperson; but, her charge to become a Black Bill Gates is over $100 billion short. I offer at least one key explanation: Bill Gates holds numerous patents, and Beyoncé holds none. Beyoncé built her more than $400 million fortune on less profitable forms of intellectual property (IP), namely copyrights and trademarks. The same is true of her husband, Sean “Jay-Z” Carter, whom Forbes named hip-hop's first billionaire. While staggering at first glance, The Carters' $1.4 billion fortune is small compared to the wealthiest Americans' and exemplifies the predisposition among Black businesspeople and celebrities to amass wealth via non-patent IP, and in industries--like entertainment--that are not patent-centric. This predisposition contributes to a wide earnings gap between whites and African-Americans, including between white and African-American billionaires.

The wealthiest Americans hold numerous patents--unsurprising considering the value of a patent as a corporate asset. For example, Jeff Bezos is named in at least 154 of Amazon's published patents; 11 list him as the sole inventor. Bill Gates partners with Intellectual Ventures, a large patent holding company, and holds close to one-hundred patents. African-Americans, by contrast, are flatly underrepresented among patent awardees. This is not to underappreciate the value of trademarks and copyright. However, the novelty requirement for patentability is more demanding than the creativity and distinctiveness requirements for copyright or trademark awards. Accordingly, patents reward early entrants into a field with a unique opportunity to monopolize its revenue streams; copyrights and trademarks do not.

The scarcity of patents awarded to Black people highlights the United States' history of entrenching white wealth and undercompensating African- Americans. During the Transatlantic Slave Trade, Black people invented at impressive rates and contributed inventions that transformed American life and industrialization. However, the patent system barred Black inventors and denied them access to critical economic opportunities. Following emancipation, racial violence and Jim Crow laws forced patenting rates downward among African-Americans. Patenting rates have still not recovered: African-Americans remain significantly underrepresented among patent applicants, patent awardees, and tangentially, the world's wealthiest people.

Human rights violations, such as the Transatlantic Slave Trade, can never be undone. Nonetheless, reparations seek to restore the status of victims as if the harm had not occurred, and paying reparations to victims of human rights violations is historically established. Following World War II, the U.S. joined many countries in pressuring Germany to pay reparations to survivors of the Holocaust. The U.S. then looked inward and issued reparations payments to victims of Japanese Internment and to Hawaiians and Native Americans for seizing their land. After the emancipation of enslaved Black people, the United States even issued reparations to white slave owners for the loss of their property. Federal and state governments have also issued reparations for the Tuskegee Experiments, racially motivated massacres, and some instances of police brutality. Although the actual implementation of these efforts is frequently criticized, the gestures nonetheless normalize reparations as an anticipated response to egregious, historical events. However, African-Americans still have not seen reparations for the Transatlantic Slave Trade, even after the 111th Congress finally acknowledged its “246-year” duration and identified the subsequent 100-year Jim Crow era as an immediate consequence with enduring “tangible and intangible” harm.

Moreover, past reparations efforts have failed to embrace the goal of repairing harm from human rights violations. They instead resembled restitution, a mere acknowledgement that harm has occurred, without prioritizing whether the “larger tear in social fabric” is repaired. While reparations should consist of direct payments to African-Americans to acknowledge the Transatlantic Slave Trade as a historic and repugnant tragedy, reparations must go beyond one-time payments. Reparations must also introduce thoughtful programming that repairs the economic and social harm of the Transatlantic Slave Trade, including the value of IP that the United States denied to Black people.

Reparations conversations have traditionally centered the losses of real property, educational opportunity, health inequity, or mass incarceration. This Essay is the first to insist that a budget for reparations include the value of patents that were denied to African-Americans for inventions that propelled the United States to the top of the global economy. Additionally, this Essay makes an important advancement in intellectual property scholarship, which has rarely considered racial disparities among intellectual property awardees. Part I explains how enslavement, Black Codes, and violence obstructed African-Americans' access to patents and related economic opportunities. Part II juxtaposes African-Americans' contributions in large-scale industries alongside their compensation and access to legal defenses. Finally, Part III highlights the multigenerational, financial consequences of underrepresentation in the patent system and outlines a possible reparations approach.

[. . .]

In 1794, Eli Whitney noted the formidable inventive contributions of Black people in America, and he did not hesitate to capitalize on the revolutionary cotton gin. In 1857, Ned's slaver saw similar value in Ned's cotton scraper. The value of African-American innovation is present today as it was in 1794 and 1857, but so is the harm from the Transatlantic Slave Trade. The United States must pay reparations to African-Americans that meaningfully acknowledge the Transatlantic Slave Trade as a human rights violation and correct persistent gaps between white and African-American innovation, income, and economic mobility. A thoughtful reparations package will include cash payments to African-Americans and multigenerational programming that increases exposure to inventive activity, balances their economic opportunities, and restores their inventive contributions to the nation.

Olivia Constance Bethea L'21 is a recent graduate of the University of Pennsylvania Carey Law School. She is currently an associate at a law firm in New York.

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