Sunday, April 24, 2016

The statue of Chief Justice Taney in Baltimore, Dred Scott, and patent law

Of the dispute over the "de-accession" of a statue of former Supreme Court Chief Justice Taney in Baltimore, wherein a mayoral task force has recommended Taney's statue go elsewhere, one does note that Taney's statue should not be considered a "Confederate" statute. Taney was not a Confederate. And, in fact, there are at least two Taney statues:

The Taney statue is a direct copy of the one that sits on the grounds of the [Maryland] State House
The original Taney statue was commissioned by the state of Maryland and unveiled in 1872,
a year before Congress would approve placing his bust among those of the nation's previous Supreme Court chief justices.

[link: ]

There is an interesting irony about referencing the Taney statue as a Confederate statue.

The majority decision in Dred Scott (authored by Taney) held that neither Scott nor any other person of African descent—whether or not emancipated from slavery—could be "citizen of a state", and therefore was unable to bring suit in federal court on the ground of diversity.

BUT, toward the end of the Civil War, when issues arose of how to count African American soldiers in prisoner exchanges, even the Confederates acknowledged that emancipated African-Americans had to be treated as prisoners, rather than as property (in contrast to Taney's viewpoint).

Although some commentators have mistakenly referenced Taney as a Confederate (he was on the US Supreme Court during the Civil War, and was not part of the Confederacy), Taney's view was more extreme than taken by the Confederacy in the prisoner exchange matter.

The vote in Dred Scott was basically 7-2, with Benjamin Curtis not only dissenting but also resigning from the Court shortly thereafter.

Curtis was the only Whig appointee to the Supreme Court, and was the first law school graduate (Harvard) to serve on the Supreme Court. Curtis authored the classic decision on patent law's "doctrine of equivalents" (Winans v. Denmead,56 U.S. 330 (1854); Taney was on the opposite side) and Curtis' brother was a patent lawyer.

See for example, Lawrence B. Ebert, Obtaining Sure and Reliable Information, Intellectual Property Today (2000), which begins

"When invention is rife and rights so precarious as they now are under the administration of the patent office, every person ought to have some sure and reliable information in relation to his legal rights before he ventures upon application." n2 "There is scarcely any subject out of which grows more law-suits than that of patents. Every one therefore interested should know what to avoid and what to do." n3 Although words of contemporary wisdom, this advice was actually given about 150 years ago. The problem remains: where to get sure and reliable information?

endnote 2: From The United States Democratic review, Volume 29, Issue 158, page 192 (August 1851) reviewing Inventor's Manual: or Legal Principles, and Guide to the Patent Office by George Ticknor Curtis, brother of Benjamin Curtis, U.S. Supreme Court Justice who authored the opinion in Winans v. Deomead, which crystallized the "doctrine of equivalents."


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