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.

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

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.