By Shane Wax
A recent episode of Jeopardy![1] featured a clue that stumped me and all three contestants on stage, but which yielded a brilliant nugget of intellectual property trivia, which piqued my curiosity to learn more. If your thirst for knowledge is as insatiable as mine, you might appreciate learning some more trivia and history about Intellectual Property.
The original clue, in the category of “Native American Firsts” provides the answer (in typical Jeopardy! fashion) as: SARAH WINNEMUCCA WAS THE FRIST NATIVE WOMAN TO SECURE THIS PROTECTION, WITH 1883’s “LIFE AMONG THE PIUTES: THEIR WRONGS AND CLAIMS.” The host informs everyone that the “protection” secured was a copyright. Upon further investigation by this author, the work is an autobiography that ends with a political plea on behalf of the Piute people for assistance from Congress, and it is considered one of the first written works written by a Native American and privately published.[2] According to Dr. Stewart,[3] the book was published with assistance from high society ladies in Boston, including Charlotte Messer Man, wife of American educational reformer and abolitionist, Congressman Horace Mann, and was widely acclaimed as one of the first written insights into cultures predominantly reliant on oral history telling.
Since a Jeopardy clue inspired this dive into history, we’ll emulate the show’s gameplay by sticking with the reverse Answer-Question format with five clues in the following category: Early American I.P.
First, the “$200” clue:
Recorded on August 10, 1920 by Okeh Records, “Crazy Blues” is widely recognized as the first sound recording by an American-American woman, featuring this breakthrough blues and vaudeville singer.
Next, the “$400” clue:
Signed by both George Washington and Thomas Jefferson, the very first U.S. Patent was awarded to Samuel Hopkins for a new process for distilling Potash, which helped America soar to the front of this industry with a present day global market size worth around $200 billion.
Now try the “$600” clue:
Under the Patent Act of 1793, Thomas L. Jennings, a tailor living in New York City, had to attest that he was a freeman before becoming the first African-American to obtain a U.S. Patent for a process that led to the development of this modern day industry.
Let’s “shake” it up with the penultimate “$800” clue:
Sarah “Tabitha” Babbitt earned quite the buzz as a tool maker and inventor, but never received full credit (or a patent) for this invention because while her Shaker religion embraced gender equality, it eschewed private property so that her ideas and inventions were considered communal property.
For the final “$1000” clue, we circle back to Native American intellectual property firsts as a nod to the original clue:
This Oneida Tribe man, who shares a name with a U.S. National Park and served in the U.S. Navy during WWI, was issued two patents in the 1910s, first for a modified megaphone intended for shipboard use, and then a “safe” handheld explosive device.
Are you ready to check your answers? How many clues did you figure out? Read the answers below and let us know if you “ran away with the category.”
$200 – Mamie Smith[4]
$400 – Fertilizer[5]
$600 – Dry Cleaning[6]
$800 – The Circular Saw[7]
$1,000 – Chapman Schanandoah[8]
[1] Season 8, Episode 172 (original air date May 12, 2022).
[2] Native American histories, songs and folklore are traditionally passed on orally with few written testaments. See Omer C. Stewart, Ph.D., Review of Sarah Winnemucca and the Northern Paiutes by Gae Whitney Canfield, 5 J. Cal. & Great Basin Anthropology 268-69 (1983).
[3] Dr. Stewart was an expert on Native American cultures and was the first chairman of the Anthropology Department at Colorado University-Boulder. His work was cited by the U.S. Supreme Court, in both the majority decision and dissent, when it took up the conflict between Oregon’s criminal ban on the use of peyote and the rights of Native Americans to practice their religion, a case in which he had testified before the trial court. See Employment Division v. Smith, 494 U.S. 872, 903 (1990) (citing O. Stewart, Peyote Religion: A History (1987)); Id. at 915 (dissenting opinion).
[4] See Daphne A. Brooks, NY Times, 100 Years Ago, ‘Crazy Blues’ Sparked a Revolution for Black Women Fans, Aug. 10, 2020, available at: https://www.nytimes.com/2020/08/10/arts/music/mamie-smith-crazy-blues.html; Candace G. Hines, Black Musical Traditions and Copyright Law: Historical Tensions, 10 MICH. J. RACE & L. 463, 479 (2005), available at: https://repository.law.umich.edu/mjrl/vol10/iss2/5.
[5] Potash is an impure form of Potassium Carbonate, originally obtained by distilling a boiling mixture of water and ashes of burnt wood (hence “Pot ash”), with uses that extend beyond fertilizer, including to glassmaking and gunpowder. Hopkin’s process resulted in significantly greater purity of Potassium Carbonate, which became the dominant method for the next 70 years until it was discovered that potassium salts could be mined from dry alkalai lake beds. See Arthur Daemmrich, Smithsonian Nat’l Museum of Am. History – Lemelson Center for the Study of Invention and Innovation, Licensing the First US Patent (May 20, 2021), https://invention.si.edu/licensing-first-us-patent; John H. Lienhard, PhD, The Engines of Our Ingenuity, Episode 56: A Potash Patent, available at https://www.uh.edu/engines/epi565.htm (last accessed June 1, 2022) (citing Paynter, H.M., The First U.S. Patent. American Heritage of Invention & Technology, 1990, pp. 18-22).
[6] Jennings was issued US Patent No. 3306x in 1821 for a “dry scouring” process, a new method of cleaning with dry cleaning products that did not harm clothes, which was equally significant and controversial for the fact that the Patent explicitly recognized Jennings as a “citizen of the United States.” Jennings successfully sued for infringement of the patent and later used patent royalties to help fund equal rights causes and organizations as he went onto become a noted abolitionist and civil rights leader. See Emily Matchar, Smithsonian Magazine, The First African-American to Hold a Patent Invented ‘Dry Scouring’, Feb. 27, 2019, available at https://www.smithsonianmag.com/innovation/first-african-american-hold-patent-invented-dry-scouring-180971394/; Jerry Mikorenda, Gotham Center for NYC History, A Bold Man Of Color: Thomas L. Jennings And The Proceeds Of A Patent, Jan. 21, 2016, https://www.gothamcenter.org/blog/a-bold-man-of-color-thomas-l-jennings-and-the-proceeds-of-a-patent; National Inventors Hall of Fame, Inductee: Thomas Jennings, https://www.invent.org/inductees/thomas-jennings (last accessed June 1, 2022).
[7] Babbitt is the first American credited with inventing the circular saw, although French and British inventors also lay claim. See Pru Barrett, The Mills Archive, Biography: Tabitha Babbitt (1779-1853), July 2, 2020, https://new.millsarchive.org/2020/07/02/tabitha-babbitt-1779-1853/; Sam Asano, Portsmouth Herald, A patently flawed argument, Mar. 8, 2015, https://www.seacoastonline.com/story/news/local/portsmouth-herald/2015/03/08/a-patently-flawed-argument/35041263007/.
[8] The megaphone is covered by Patent No. 1040775A and the explosive is covered by Patent No. 1141009A. See generally Oneida Indian Nation, An Oneida Renaissance Man: Chapman Schanandoah, https://www.oneidaindiannation.com/an-oneida-renaissance-man-chapman-schanandoah/ (last accessed June 1, 2022); U.S. Naval History & Heritage Command, Chief Machinist’s Mate Chapman Scanandoah Har-Chico-Qui, “He Moves the Fire”, Dec. 27, 2021, available at https://www.history.navy.mil/browse-by-topic/diversity/american-indians/chapman-scanandoah.html.