Continuing our alcohol, tobacco, and firearms series, we now turn our attention to perhaps the most stigmatized industry of all three: the tobacco industry.

Class 131 at the USPTO handles applications relating to tobacco, including:

(A) Products containing tobacco or tobacco substitutes intended for personal use for smoking or chewing or for use as snuff.

(B) Processes and apparatus for manufacturing the products set forth in paragraph (A) where not elsewhere provided for.

(C) Processes and apparatus for treating tobacco preliminary or subsequent to manufacturing into products of paragraph (A) where not elsewhere provided for.

(D) Appliances peculiarly adapted to use by smokers where not elsewhere provided for.

First, we’ll take a look at the prosecution metrics for Class 131 as a whole, then we’ll dive into the metrics for the top assignees and firms operating in Class 131.

Class 131

Prosecution in Class 131 is more difficult than the USPTO at large, as applicants face a lower average allowance rate, a longer prosecution timeline, and are generally less successful at overcoming rejections than elsewhere at the USPTO. There are several reasons why this might be the case. One is that examiners at the USPTO are influenced by the wider social stigma surrounding tobacco usage and are simply biased against tobacco companies. However, just because patent prosecution is more difficult in a certain class doesn't necessarily mean that examiners are biased against that type of technology or industry. A more likely explanation is that it is more difficult to obtain a patent in Class 131 because the tobacco industry has been around for such a long time that there is not very much new or non-obvious material out there. 

Regardless of the exact reason why obtaining a patent in Class 131 is more difficult than at the USPTO at large, the number of applications filed in Class 131 has been increasing at an impressive speed since 2009, although there is evidence to suggest that this increase has started to reverse itself. See the graphs below for Class 131's average prosecution metrics. Hover for detail. 

Assignees

Due to a series of significant mergers and acquisitions, there are very few assignees that operate in Class 131 in quantities sufficient to extract data that is reliable enough for statistical analysis. Thus, we have narrowed our study down to the three assignees that file the most applications in the class. These assignees are Altria, Reynolds American, And British American.

Altria

As the parent company of Philip Morris, Altria is the largest producer and marketer of tobacco products in the United States. The company that would eventually become Philip Morris began in London in 1847 with a single shop selling "Philip Morris English Ovals." It incorporated in the United States in 1902. In 1924, the company launched its iconic Marlboro line of cigarettes, which would later come to be associated with the American West and all things masculine. (There’s a reason why Marlboro Reds are called “Cowboy Killers” today). However, Marlboro’s original slogan was “Mild as May” and they were actually first marketed to women! The company rebranded to "Altria" in 2003 to escape the negative connotations associated with the tobacco industry. Its principal brands are Marlboro, Virginia Slims, Benson & Hedges, Merit, Parliament, Basic, and L&M.

Reynolds American

Reynolds American is the second-largest tobacco company in the United States and is the parent company of R.J. Reynolds Company, which was founded in Winston-Salem, North Carolina in 1875. Reynolds grew rapidly with the acquisition of most of the other tobacco factories in Winston-Salem, and their Camel line of cigarettes became the most popular in the country for a time. In fact, Reynolds imported so much French cigarette paper and Turkish tobacco for its cigarettes that the federal government designated Winston-Salem as an official port of entry for the United States, despite being more than 200 miles inland. Reynolds’s success greatly boosted the fortunes of Winston-Salem and North Carolina as a whole, with its bank, Wachovia, becoming one of the largest in the Southeast, and its law firm, Womble, Carlyle, Sandridge & Rice becoming the largest in the state. Its principal brands are Camel, Newport, American Spirit, Doral, and Pall Mall.

British-American

The British American Tobacco Company is an international conglomerate that formed in 1902 when the United Kingdom’s Imperial Tobacco Company merged with the United States’s American Tobacco Company. After its founding, it went on an aggressive acquisition campaign, allowing it to develop in markets as diverse as India, Chile, Brazil, Mexico, Germany, Sweden, and China. In 2004, it acquired a 42% share in Reynolds American, and is currently in negotiations to acquire the remaining shares. Although it presently has no operations in the United States, it sells the “Lucky Strike,” “Kool,” and “Pall Mall” brands outside of the United States, while the same brands are sold by by R.J. Reynolds inside the United States.

See the graphs below for a comparison of how all three perform at the USPTO. Hover for detail. 

Firms

The top 10 firms operating in Class 131, in order of applications filed, are:

  1. Buchanan, Ingersoll & Rooney

  2. Womble Carlyle

  3. BSKB

  4. Cooley

  5. Flash IP

  6. Brinks, Gilson & Lione

  7. Middleton Reutlinger

  8. Morris, Manning & Martin

  9. Fish & Richardson

  10. Oblon

See the graphs below for a comparison of how each firm performs at the USPTO. Hover for detail. 

 

When it comes to prosecuting tobacco patents, Altria is the clear winner among the assignees. As for the firms, well, that's a bit more nuanced. Buchanan, Ingersoll & Rooney files by far the highest number of applications in Class 131, but its allowance rate and speed to allowance are less impressive by comparison. Oblon has the highest allowance rate and does well with claim retention, but its speed to allowance and number of applications filed are on the lower end. And if you need a tobacco patent fast, perhaps Brinks, Gilson & Lione is the best fit.

Next up: Firearms.

We used Juristat’s database of over 8 million patent applications to collect the data for these articles. We encourage all patent practitioners to learn more about using big data to enhance their prosecution practice. Take the first step and check out our free trial!

 

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