Kellogg’s famous Frosted Mini-Wheats cereal would have never became a reality if it wasn’t for the expiration of two 1912 patents and some rebranding.

In 1893, Henry Perky developed Shredded Whole Wheat cereal, displaying it at the World Fair in Chicago that same year. Originally dubbed “eating a whisk broom” by John Harvey Kellogg, a man whose brother, W.K. Kellogg, would later form the Kellogg company, the cereal quickly gained popularity. When Perky died in 1908 and his two patents on the biscuits and machinery that made them expired in 1912, the Kellogg Company soon capitalized on the shredded wheat industry. The National Biscuit Company, a successor of Perky’s company, filed a lawsuit against Kellogg in 1930. The U.S. Supreme Court tried the case in 1938 and ruled in favor of Kellogg, citing the term “shredded wheat” could not be trademarked and the cereal’s design could be copied after the patents expired.

The National Biscuit Company, or Nabisco, as it is known today, lost the battle for the right to exclusively manufacture the shredded wheat cereal.

In the Kellogg Co. v. National Biscuit Co. case, Mr. Justice Brandeis delivered the opinion, stating, “It equally follows from the cessation of the monopoly and the falling of the patented device into the domain of things public that along with the public ownership of the device there must also necessarily pass to the public the generic designation of the thing which has arisen during the monopoly.”

Though this is indeed how patent court proceedings typically play out, something about this case strikes a nerve within the future IP attorney in me. Though Perky himself was both an attorney and inventor, I can’t help but think he would not have wanted his idea for shredded wheat to no longer belong exclusively to his future parent company. While his goal was to patent the machinery that could manufacture the cereal, that too no longer belongs to him.

Kellogg Co. v. National Biscuit Co. calls into question the fine line between profiting from one’s own invention and allowing others to benefit from and improve upon that invention. If patents didn’t exist, products of a similar nature would undoubtedly be much cheaper for consumers, yet the inventor would loose incentive to develop his or her ideas due to low profitability.

Who is to say one option is better than the other?

I wonder what Perky would say.

 

 

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