A&E’s reality show, Duck Dynasty,
illustrates the principle that the true source of success often
can be camouflaged. While the affable, bearded stars
(right) clown around on screen, they are, in fact,
well-educated, humble men of faith and family. Although Duck
Dynasty depicts the comedic antics of Phil, Willie and Jase
Robertson at the Duck
Commander office, the real reality is that the
Robertsons built a multi-million dollar empire by developing a
unique product, capitalising on its novelty, and engaging in a
systematic and well-conceived business strategy. It started with, of all things, a
In the 1970s, the family’s patriarch, Phil
Robertson, decided to forego his teaching career to pursue his
passions of fishing and hunting in northeast Louisiana. To make
ends meet, he planned to sell a duck call that he had invented.
As with many entrepreneurs, however, he was faced with the
daunting challenge of infiltrating an already-saturated market.
Duck calls had been around for over a century, and competitors
posed a roadblock.
To distinguish his
product, Robertson sought patent protection. In 1977, he filed
an application for a utility patent, entitled Duck Caller.
Robertson’s application detailed the structure of
the apparatus, explaining that his invention had a specific
advantage over prior duck calls because it could "simulate,
nearly perfectly, the call of the mallard hen". Two years
later, the USPTO issued US patent number 4,151,678 (left).
To be fair, Robertson’s patents did not
instantaneously bestow success upon him. Rather, Robertson and
his family engaged in a diligent and dogged marketing campaign
(with a little luck and/or divine intervention). But the patent
Robertson’s patent offered several business
First, Robertson’s patent gave him a marketing
edge. As he sold duck calls out of the back of his truck, or
lobbied Wal-Mart for shelf space, customers didn’t
have to rely on his word. He could point to a certificate
issued by the US government legitimising his innovative
product. He could tout the distinction between his duck call
and any competitive devices by explaining that the USPTO had
concluded that his duck call was novel and useful.
Second, it permitted him the right to exclude others from
his market. No one in the duck hunting industry could make a
duck call that embodied the structure of his innovative
product. If anyone copied his product, he could enforce his
patents against them in court.
Third, if competitors had patents, he could employ his
patents as a negotiating tool to gain access to their segment
of the market, or overcome barriers to entry.
Fourth, his patent was an asset. If he desired to liquidate
the value of his company, he could always license or sell his
As Duck Commander infiltrated the market and its product
line grew, Robertson continued to expand his intellectual
property portfolio. He obtained US patents numbers 5,230,649
("Duck call apparatus") and 6,863,187
("Gun support apparatus"). Interestingly, however, Robertson
elected not to pay the maintenance fees on these patents, and
allowed them to expire in 2001 and 2008 respectively. Thus, by
2001, all of Duck Commander’s patents on duck
calls had expired. Duck Commander was exposed to the crosshairs
as a result of this exposure, the duck call market became
increasingly crowded and competitive. Amazon.com now lists
almost 50 brands of duck calls, and over 500 product offerings,
many of which appear to employ the structure previously
patented by Robertson. Primos, for example, appears
to rank as one of Duck Commander’s most intense
competitors, offering over 100 animal calls. Moreover,
Primos’s website boasts a large patent portfolio,
which the "company’s patent attorneys, all
committed bow-hunters, protect aggressively".
Coincidentally, about 80% of Primos’s patents
have issued since Robertson’s duck call patents
expired in 2001. And true to the statements on its webpage,
Primos has aggressively enforced its patents in federal courts.
In 2004, Primos prevailed in a three-week patent infringement
trial against Hunter’s
Specialties, receiving more than $3 million in total
damages (affirmed by the Court of Appeals for the Federal
Circuit in 2006). Accordingly, Primos appears to be moving in
on Duck Commander’s patent territory, and as a
result, continues to gain market share.
combat Primos’s gains in the market, it appears
that Duck Commander is reinvigorating its patent position. Its
recent product offerings highlight its innovative triple-reed
duck calls, for which patents are now pending. As a result,
there appears to be a patent shoot-out brewing in the duck
ponds. Perhaps A&E’s next reality programme
will involve a Battle of the Duck Call Superstars. Stay
The authors are partners in the Washington, D.C. office
of Finnegan, Henderson, Farabow, Garrett & Dunner and can
be reached at email@example.com