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2010 WE 3389278 (BD. Pat. App. & Inter.) Page 1 2010 WE 3389278 (BD. Pat. App. & Inter.) Board of Patent Appeals and Interferences Patent and Trademark Office (P.T.O.) *1 Ex Parte Miguel A. Estrada,

OPINION AND FINDINGS: 1 The First Amendment protects a broad range of speech, including “advertisements for goods and for services”. See Ward v. Rock Against Racism, 441 U.S. 578, 588 (1979). 2 To illustrate how the ad is “good” speech -- and to explain why this appeal must be granted -- it helps to consider the context in which the commercial was offered. 3 On July 21, 2007, the appellant, a man who was not a licensed dentist, placed two ads for services in the local newspaper. 4 The advertisements indicated his willingness to conduct a free, advertised oral examination for free, on July 27 between 11:30 a.m. and 12:00 p.m. The free oral examination, he said, would be conducted by his “partner” who was a licensed dentist. 5 At approximately 12:00 p.m., the man had one of his patients return to his office, where the patient reported having a sore tooth with no bleeding. 6 The man did an X-ray of the tooth and found a small abrasion, consistent with a “wound.” He suggested that this might be the explanation, but did not know either the severity of the abrasion, the patient's actual experience with a dentist, or the type of denture the patient had on, or, for that matter, her race. 7 Then the man's patient, who is, as it happens, a member of a racial minority, came to the office to tell the dentist that she had been denied service, and to ask for information about his practice, which, the patient told the physician, the dentist was not prepared to answer. 8 When the patient identified herself as a “black female,” and described her personal history, the dentist, in turn, asked her if, in her opinion, the man's practice was racist or not. When she indicated that, in her opinion, it was not, the two parties agreed that he would do an initial evaluation of her teeth. 9 The woman then walked with the dentist to a nearby restaurant. When the dentist returned to the home after dinner, the two men were alone in the car. 10 On this particular day, the dental office was closed and the woman knew that the man did not have patients that day.

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