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In the recent CNN video Cruz calls Biden's Supreme Court promise 'offensive' and 'insulting' former US senator Carol Moseley Braun responded to comments from US Senators Ted Cruz and Roger Wicker about President Biden's plan to appoint a black female justice to the Supreme Court:

CNN: Senator Roger Wicker said that whoever is picked will have been a beneficiary of affirmative action, but perhaps one of the more eye-popping things he said was, quote: "We're going to go from a nice, stately left wing liberal, to someone who's probably more in the style of Sonia Sotomayor. Why do you think he sees Breyer as nice and stately, and yet in his opinion the first hispanic female justice is not, and he expects that the first female black justice whose identity we don't even know yet will not be "nice and stately"?

Moseley-Braun: I made the point earlier that this is the voice of white supremacy [...] Again, I've got a different set of experiences. When I got to the United States Senate, I brought a different set of experiences to that body, that I hope were helpful. We had had the confederate flag patent renewed over and over and over again, until I stood up and said "Wait a minute, this is offensive to black people, who were held in slavery under this flag. And my colleagues finally got it. And we wound up denying the patent thank goodness. And again that was something that passed unnoticed, and undiscussed until I got there.

And so I think that having a black woman on the United States Supreme Court will help to inform decisions there, in ways that will help the country to grow, and to be better, and to fulfil the promise of democracy.

Question: How and to what extent did the US Senate block or prevent the Confederate Flag from becoming intellectual property?

Usually decisions about patents and trademarks are made by the US Patents and Trademarks Office or USPTO, but Moseley-Braun seems to be referring to decisive activities by the US Senate.

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    For what it's worth, the power to issue or deny patents and trademarks is, per the constitution, expressly a power of Congress alone. As is the case of pretty much every executive branch office, the USPTO exists under a delegation of that Congressional authority. In principle Congress can decide every patent and trademark themselves, but it didn't take long for them to see that as a pain-in-the-arse and to create the USPTO to deal with it. But they can still exercise it in particular instances whenever they so desire.
    – zibadawa timmy
    Feb 4, 2022 at 6:15

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The Senate was voting to table (dismiss) an amendment which would have "granted an extension of patent to the United Daughters of the Confederacy". The full text of the amendment was as follows:

SEC. EXTENSION OF PATENT FOR INSIGNIA.

A certain design patent issued by the United States Patent Office on November 8, 1998*, being patent numbered 29,611, which is the insignia of the United Daughters of the Confederacy , which was renewed and extended for a period of fourteen years by the Act entitled "An Act granting an extension of patent to the United Daughters of the Confederacy" approved November 11, 1977 (Public Law 95-1468; 91 Stat 1349), is renewed and extended for an additional period of fourteen years from and after the date of enactment of this Act, with all the rights and privileges pertaining to the same, being generally known as the insignia of the United Daughters of the Confederacy.

*The date 1998 is a typo in the amendment - it should be 1898.

At the time of being granted, design patents expired after fourteen years (35 U.S. Code § 173), and extensions could only be granted by Congress.

This design patent (which can be viewed here) had been renewed and extended every fourteen years since being granted in 1898, but the amendment extending the patent in 1992 had been attached to a bill that was not acted on by the House, and the patent expired in November of that year. It was therefore necessary to renew and extend the patent, and this amendment was considered on July 22nd 1993.

The Senate first voted against tabling the amendment 48-52. After an impassioned speech by Moseley-Braun, which is far too long to reproduce here, but definitely worth reading in the Congressional Record (page 16681 onwards) a motion to reconsider passed 76-24, and the amendment was then tabled by a vote of 75-25.

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  • Is it usual for Congress to renew patents?
    – Acccumulation
    Feb 3, 2022 at 19:28
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    @Accumulation - No, which is rather the point. The regular renewal of the patent that the Daughters of the Confederacy had on the flag essentially amounted to a special dispensation for the organization, almost an endorsement of them, which given that the organization was and is rather racist, looks bad for Congress. That Congress saw it this way is clear from the senator (Strom?) Thurmond's speech in which he justifies the special dispensation by glowingly complimenting the organization.
    – Obie 2.0
    Feb 3, 2022 at 20:34
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    Some of the other organizations that received design patent dispensation were Union groups dating back to the civil war, and Thurmond mentioned them in his speech, explicitly making the argument that was the whole reason for their exemption in the first place: that an organization dedicated to a country that existed for only a handful of years for the purpose perpetuating the chattel slavery of nearly an entire racial group was as patriotic as those that had fought to eliminate that system. The Senate sensibly rejected this reasoning, and thus the patent renewal.
    – Obie 2.0
    Feb 3, 2022 at 20:40
  • It should probably be noted that Sen Moseley-Braun's description is rather misleading. There was no patent on "the confederate flag." The patent was a design patent specifically for the insignia of the United Daughters of the Confederacy. While one of the Confederate flag designs is included in the insignia, the flag design itself was not patented, nor would they have been eligible to hold such a patent.
    – reirab
    Feb 4, 2022 at 10:54
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    For some background information about the United Daughters of the Confederacy and the The Lost Cause narrative that this patent issue is a part of, the podcast Teaching Hard History has an episode about that (in Season 4 which is covering the Jim Crow Era). The main discussion part starts after a 6 minute prelude part.
    – hlovdal
    Feb 5, 2022 at 8:55

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