Wall Street Journal Profiles Medical Marijuana, but not Important USPTO Issues

By Gene Quinn
July 19, 2010

Earlier today the Wall Street Journal gave front page space to a story relating to the United States Patent and Trademark Office.  Widely regarded as one of the “papers of record” in the United States, one might expect that the Wall Street Journal had brought its considerable clout to an important issue plaguing our time, such as an horribly under funded Patent Office that is holding innovation hostage, costing America perhaps millions of jobs.  NO!  Rather than educate itself and others, thereby exposing in real terms for the everyday observer the plight of the Patent Office and what it means to the United States economy, the Wall Street Journal wrote a front page article on the errant creation of a trademark class associated with medical marijuana.

Don’t get me wrong, every tabloid should have front page news story about pot, medical marijuana and have an image of a VW bus over the tag “the Canny Bus,” as the Journal did earlier today.  Call me crazy, but I expected more from the Wall Street Journal.

Is it news that the United States Patent and Trademark created a trademark class for medical marijuana?  Yes, I suppose it was news, but was it front page Wall Street Journal news?  I can’t recall the Wall Street Journal writing front page articles about the plight of the Patent Office and how the lack of adequate funding from Congress is preventing the patenting of innovation, which in turn prevents start-up businesses from obtaining patents, which makes it virtually impossible to find investors.  No investors, not expansion and that means no jobs.  Worse yet, no investors and promising technologies that could spur entire industries never exist.  In my book the drag on innovation caused by years of inadequate funding and years of mismanagement of the Patent Office are far more important and far more relevant to a business newspaper than an article printed for the purpose of making the Patent Office look bad and to perhaps inappropriately attempt to paint the agency as promoting some left wing agenda.

At this point allow me to get my bias on the table.  I am a conservative Republican who prefers low taxes, small government and individual responsibility.  I oppose the widespread availability of marijuana and the prescribing of marijuana for car sickness and headaches, which doesn’t seem to be what is contemplated by the term “medical marijuana.”  So this being said, if I thought the Patent and Trademark Office were attempting to take part in the furtherance of a vast left wing conspiracy to promote the legalization of drugs I would be among the first to stand up and take issue.  But that is clearly not what happened here.

Not that the Wall Street Journal would want to concern itself with facts, but applicants are allowed to suggest the creation of new trademark classes, which appears to be how this class came into being.  The Wall Street Journal article does explain that some employee at the Patent and Trademark Office thought that since medical marijuana was legal in some states that it made sense that the USPTO should recognize that as a valid classification of goods.  There was no nefarious attempt to forward an agenda here, just an honest mistake by an employee that the Patent and Trademark Office corrected even before this front page news ran in the Wall Street Journal.  You see, you cannot get a trademark on something that cannot be legally sold in interstate commerce, so no such class should have been created.  But even if the class were to be maintained what exactly is the harm?  The Trademark Examiners wouldn’t have issued any such trademarks.  So at worst this mistake might have been misleading to those who are engaging in the sale of medical marijuana, who should have their application fees returned to them, in my opinion.

So why exactly did the Wall Street Journal run a non-news story on page one?  Is the Wall Street Journal finding it necessary to go for cheap headlines and quick reads on things that seem so bizarre they almost cannot be believed?  Is the Wall Street Journal now in competition with Jerry Springer or Maury Povich?

I wouldn’t have such an issue with the Journal had at any time they done some serious news reporting on an issue of such great importance as the running into the ground of the United States patent system.  In the past I have been contacted by Journal reporters and given them as much time as they needed to discuss issues, as I always do with reporters.  Time and time again when dealing with the Wall Street Journal, after extremely lengthy conversations their patent stories are only several hundred words.  So important and real issues get squeezed and non-news that potentially makes the Obama Administration look bad gets the front page.

Perhaps the Journal should stand up and take note that this Great Recession will likely be the first recession not to have enormous innovative job growth as a result thereof.  You see, during recessions engineers and scientists lose their jobs and then proceed with projects they have long wanted to pursue, which leads to new technologies, new companies and millions of jobs.  Not this time, thanks to an epic backlog of patent applications and an average pendency that is too long by any honest view.

So while the Wall Street Journal has failed to blow the lid off the jobs story that is right there out in the open, but which no one talks about and covers, they found time to give front page space to a medical marijuana story that will only embarrass the Patent Office for a mistake, attract maybe a few readers they wouldn’t otherwise have had and continue to obfuscate the real news associated with the USPTO.

There are dedicated men and women working at the USPTO, and thankfully for nearly a year it has been under new management.  There has been progress made, but the reality is that without at least a little cooperation from Congress the Patent Office will be relegated to pilot programs and freebies, because they don’t have any money given that Congress siphons off many millions of dollars for the general budget.  In fact, this year Congress will siphon off between $200 to $250 million from the USPTO.  But did you read about that on the front page of the Wall Street Journal?  Did you read that Senator Harry Reid won’t schedule floor time in the Senate to pass patent reform that came out of the Senate Judiciary Committee?  Of course, the fact that patent reform will die AGAIN makes some happy, but is medical marijuana more important than the stonewalling going on in Congress and complete refusal to act meaningful patent reform and adequately fund the Patent Office?  For crying out loud Congress can’t even pass meaningless patent reform and it is just the icing on the cake that the supposed paper of record on all things business and financial is doing its best impression of see no evil, hear no evil, speak no evil.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 6 Comments comments.

  1. Dan Ballard July 20, 2010 10:33 am

    I agree that adding: a goods classification for marijuana, a class for pipes used to smoke marijuana, and
    a class for medical marijuana procurement services – and then deleting each of them – is not a big deal.

    On April 3rd I posted a document on Scribd.com that identified these new classes and a number of marijuana and marijuana-related applications and registrations. See http://j.mp/chnb7H . I also tweeted about it some back then at @Ballard_IP .

    There are, however, two loose ends:

    1. According to the WSJ, “Mr. Pappas said …The office has never actually granted a pot trademark, the spokesman said, adding it’s ‘highly unlikely’ that it would do so in the future.”

    That’s clearly not true. See http://j.mp/92iW17 for GOOD LEAF COLLECTIVE [Registration Number 3777636] for “Retail store and on-line retail store services featuring medical marijuana.”

    More applications for marijuana and marijuana-related goods and services are in the pipeline which have already been approved. So trademark registrations ARE issuing for goods and services that cannot lawfully be offered under federal law. Regardless of your stance on that law, it is bad trademark law for the USPTO to issue such registrations.

    2. You wrote that “… some employee at the Patent and Trademark Office thought that since medical marijuana was legal in some states that it made sense that the USPTO should recognize that as a valid classification of goods. “

    In response to my Freedom of Information Act Request, the Trademark Office sent me heavily redacted e-mails discussing its addition of these three marijuana-related classes. See http://j.mp/dBzHFl .

    In that decision-making process was Sharon Marsh, the USPTO’s Administrator for Trademark Policy and Procedure. It seems that the decision to add these marijuana classes [or at least to keep them once added] was not made by some low level employee but rather quite high up the Trademark Office food chain. The email traffic reveals there was quite a bit of discussion about the legality of adding these classes [though the discussions were redacted under the “deliberative process” exception].

    I don’t care enough about the issue to spend any more time on it but this episode does raise a trademark conundrum: because trademark registrations can issue only to cover marks used on goods or services that can lawfully be offered for sale, what is the federal Trademark Office to do when goods or services are lawfully offered under state law but are unlawful when offered under federal law [even within the state that says those goods and services are legal]?

    Forget the issue of whether the Trademark Office ought to have goods and services classifications for marijuana. The real issue to my mind is whether such registrations should issue at all.

  2. Gene Quinn July 20, 2010 11:07 am

    Assuming a trademark does and can issue, wouldn’t the required statements stating there is use in interstate commerce be capable of being conclusively used by prosecutors to demonstrate criminal activity?

    I certainly agree this was an unfortunate occurrence. Like I said in the article, I wouldn’t have any problems with the Journal taking this issue on if they were interested in taking on what are clearly far more important issues relating to the fact that the Patent Office simply cannot participate in the creation of jobs like it can and should and always has during recessions. That is a story of national importance on many levels and the Journal, and virtually all of the major media outlets, are AWOL. Instead, they give front page treatment to a sensational oddity.

    -Gene

  3. staff July 21, 2010 11:33 am

    “Of course, the fact that patent reform will die AGAIN makes some happy…”

    I wouldn’t mind if they passed a bill that actually “reformed” =improved the patent system. But what Leahy calls reform is in fact deform. It does nothing to help the backlog. All it is is a get out of jail card for large infringers and crushes small entities.

    Patent reform is a fraud on America. It is patently un-American.

  4. Bobby July 21, 2010 1:19 pm

    While not federally illegal, I know that there are some fireworks that consumers can have in some states that they can’t in others, making the situations at least somewhat similar. Are these fireworks vendors not allowed to obtain trademarks? If not, that’s a real shame, since they often have some wonderful names, and it would be a shame if an enormous Screeching Eagle or whatever that lights up the sky and makes quit a bit of noise couldn’t differentiate itself from a set of sparklers with the same name.

  5. patent litigation July 27, 2010 5:16 pm

    The fact is that medical marijuana is simply a “sexier” topic than patents, and too often journalists cater to the lowest common denominator.
    http://www.industryweek.com/articles/patent_enforcement_21538.aspx?SectionID=2

  6. Dan@Paradigm Life January 25, 2011 5:26 pm

    I have done work on and off with the USPTO (for various internships) and it is one thing that I have noticed that there is always a lot of hesitance when it comes to the office. It is widely known that it the patent process is one of the longest, most frustrating, most drawn process involved in making any new venture come to life. I would not have given another thought to actually drawing attention to the issue in order to affect a change; additionally, I had not considered the negative impact that the slow nature of the process has on the economy as a whole.