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“Build a better mousetrap and the world will beat a path to your door”-Ralph Waldo Emerson. With all due respect to Emerson, it is not that easy. As any inventor, entrepreneur or patent owner knows, it is not enough merely to sit back and wait for the world to recognize your ingenuity. It takes more. It takes hard work, a little luck and, for most inventions, a little self-promotion. Patents are typically considered to be the domain of scientists and lawyers. Scientists develop a new technology; lawyers step in to register the patent. Then the company owning the patent may choose simply to sit on the patent, sue competitors that infringe or license others to earn royalty income. But some smart companies use their valuable patent assets in a more creative way-they advertise that the product is patented. This is not the same as merely “marking” a number to comply with the patent statute. This is full-page, national magazine advertising to boast of the patented status. On the pages of countless magazine and newspaper advertisements, as well as on broadcast commercials, companies promote their products as patented for a significant reason: It helps them sell more products at higher profitability. Ask most consumers what is meant by the term patented and they will respond that it means that the invention has been recognized by the government as being better, safer, more efficient or generally more “hi-tech.” Patent lawyers know that a patent does not mean any of this. It merely means that the invention is sufficiently different from existing technology to merit a patent. Different does not always mean better. Patents are granted for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C 101. Patents are also available for any “new, original and ornamental design for an article of manufacture.” 35 U.S.C. 171. A third kind of patent is granted for the invention of new varieties of plants. 35 U.S.C. 161. An invention must be considered to be novel, useful and unobvious. It must also be fully disclosed. 35 U.S.C. 101, 102, 103, 112. If an invention meets the legal requirements, the inventor will receive a patent from the U.S. government granting him or her legal rights in the invention. Thus, there is nothing in patent law that requires that an invention be “better,” more efficient, less expensive or otherwise an improvement on existing technology. It merely must be new, useful and unobvious. Use in advertising Nonetheless, the use of patents in advertising presents an opportunity for leveraging patents as sources of profit. Advertising that involves patents is an age-old technique. Indeed, so-called patent medicine got its name from the practice, more than a century old, of advertising certain substances as “patented,” notwithstanding the often questionable evidence of their therapeutic value. The use of patents in advertising, though an old practice, could very well be an underappreciated use of valuable property rights. The fact that most consumers likely associate patents with government approval and superior performance can be a way of increasing market share or profitability merely by boasting of a product’s patented status. Patents may also provide effective institutional advertising to promote a quality of the entire company-innovative, forward-thinking and investing in the future. Advertisements for consumer products that mention patents often play into a consumer perception that patented technology means better technology. The accompanying ad from Oakley Inc. on the opposite page is a very effective use of its patent assets. The headline makes reference to 117 patents, with the clear suggestion to a consumer that these sunglasses are packed with the latest technology and well worth whatever the asking price may be. However, the reader does not know whether these 117 patents are still in force or expired. Are they 117 different patents or the same invention patented in 117 countries? The message is clear, however; these sunglasses are better than the competition. The Charles of the Ritz ad shows that even something as arcane as patent law can have some sex appeal. At least Charles of the Ritz believed that women would purchase more lipstick if they knew that it was so “terrific” that it was patented. Of course, being “terrific” is not a statutory requirement for obtaining a patent. You can get a patent even if your lipstick is not terrific. However, most consumers would likely regard the patented status of their “terrific” lipstick as suggesting that it includes the latest and best technology. A numbers game Sometimes a company just wants to promote the fact that it gets a lot of patents, as in the Robert Bosch GmbH ad. This suggests a company that is innovative in general, and thus that all of its products, patented or not, are innovative. This selection of examples is hardly exhaustive. It is just a small sampling of the advertisements to which consumers are exposed every day. The marketers who made these advertisements all knew what lawyers should know too: Consumers react well to patents. For many companies, patents are an underused asset. Once issued, they are placed in a file drawer in the legal department and used only to sue or license someone. There are other uses, and advertising is just one very effective way to use one’s patents. Barry L. Grossman is a partner in the Milwaukee office of Foley & Lardner and the leader of the firm’s consumer products and trademarks practice. The ads used as examples are several years old. They all appeared in national publications.

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