UNITED STATES PATENT AND TRADEMARK OFFICE ‘OFFICE OF THE GENERAL COUNSEL May 3, 2010 Mr. Daniel Ballard Sequoia Counsel PC 770 L Street, Suite 950 Sacramento, CA 95814 Re: Freedom of Information Act (FOIA) Request No. F-10-00134 Dear Mr. Ballard; ‘The USPTO FOIA Office received your e-mail dated April 08, 2010 in which you requested, under the provisions of the Freedom of Information Act, 5 U.S.C. § 552, a copy of: “[alll documents consisting of communications [including but not limited to legal opinions] between any and all USPTO employees that discuss the addition of The Marijuana Descriptions to the ‘Trademark Acceptable Identification of Goods and Services Manual.” ‘The United States Patent and Trademark Office (USPTO) identified 35 pages of documents that are responsive to your request. A copy of the material is enclosed. Portions of the material were redacted pursuant to Exemptions (b)(5) and (b)(6) of the FOIA. Exemption (b)5 of the FOIA, 5 U.S.C. § 552(b)(5), protects an agency's deliberative process, privilege, Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). The privilege applies to documents which reflect "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co,, 421 U.S. 132, 150 (1975), quoting Carl Zeiss Stiftung & Co. v. V.E.B. Carl Zeiss. Jena, 40 D. 318, 324 (D.D.C. 1966). Here, the withheld information consists of inter-agency communications containing the recommendations and opinions regarding proposed agency actions, i.c., Antecedent to the adoption of an agency position Jordan v. Dept of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en bane), and deliberative, ic, a direct part of the deliberative process in that it makes, recommendations or expresses opinions on legal or policy matters. Vaughn v. Ro 1136, 1143-44 (D.C. Cir. 1975). Portions of withheld records consist of attorney-client ‘communications that ate privileged, and as such, they are not disclosable pursuant to Exemption (b)(5). Facts expressed in these privileged communications are not reasonably segregable, and thus not suitable for disclosure. 23 F.2d Predccisional, deliberative documents "are at the heart of Exemption (b)(5), and sanctioning release of such material would almost certainly have a chilling effect on candid expression of views by subordinates [within an agency]." Schell v. Dep't of HHS, 843 F.2d 933, 942 (6th Cir.1988) (emphasis added). In particular, disclosure of documents reflecting the positions discussed, but not ultimately adopted as agency decisions are deliberative, and thus exempt from disclosure. Fulbright & Jaworski v. Dept of the Treasury, 545 F. Supp. 615, 621 (D.D.C. 1982). An employee's name was redacted from Page 1 pursuant to Exemptions (b)(5) and (b)(6) of the FOIA. Individuals have a privacy interest in protecting against public harassment arising from mischaracterization of a routine administrative action as some sort of expression of personal belief. The employee in this instance would be subjected to an unwarranted invasion of personal racy by publicity from advocacy groups with an interest in this issue. There are vocal advocates both for and against the legalization of medical marijuana. It is reasonable to expect that the lower-level employee making recommendations concerning the addition of the descriptions could be erroneously and unfairly targeted as either a proponent or opponent to advocates’ respective causes. This constitutes an unacceptable risk of unwarranted invasion of personal privacy. Moreover, the specific identity of a lower-level employee performing a routine administrative function within the scope of their employment is not of great public interest and adds nothing to the publie’s understanding of the USPTO's activities. When considering the disclosure of such information under the FOIA, agencies must balance the public interest against 1c interest that an individual has in the information. The FOIA request does not assert a that outweighs the privacy interest, nor is a public interest otherwise evident. interest in this information is greater than any identifiable public interest, the FOIA requires that the information be withheld. Accordingly, the employee name on Page 1 is redacted pursuant to Exemption (b)(6) of the FOIA. ‘The withholdings under Exemptions (b)(5) and (b)(6) constitutes a partial denial of your request for records under the FOIA. The undersigned is the denying official. You have the right to appeal this initial decision to the Deputy General Counsel, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. An appeal must be received within 30 calendar days from the date of this letter. See 37 C.E.R. § 102.10(a). The appeal must be in writing, You must include a copy of your original request, this letter, and a statement of the reasons why the information should be made available and why this initial denial is in ettor, Both the letter and the envelope must be clearly marked "Freedom of Information Appeal." Sincerely, FOIA Officer EnclosureFrom: Rober, Jesse ‘Sent: wos, Mirch 3, 20109:24 at March iD Marva Suggesters em ano 78r Roberts, esse Subject: RE! March Marsal Suagestons | Ce, coi 7.9m Jo: Robo, oss Stbject: March 9 Manual Sungestons | eee (© Acupressure plows in Cass 10,Page 1 of 1 Joyner, Charles ° From: Roberts, Jessie Sent: Wednesday, March 31, 2010 929 AM Te: Hom, Noreen, Allen, Benjamin Trademarks); Gearn, Amy; Miler, Monique; Munson, Mary; Stephens, Sonya fo Subject: 4-1-10additions xls / Attachments: 4-1-10additions xls Her the spreadsheet F tonight's update, ar forroron fonPage | of 2 Marsh, Sharon From: Roberts, Jessie Sent: Tuesday, April 06, 2010 6:26 AM To: Marsh, Sharon Ce: Browne, Dayna; Lynch, Cynthia ‘Subject: RE: medical marijuana From: Marsh, Sharon Sent: Friday, April 02, 2010 4:29 PM To: Roberts, Jessie Ce: Browne, Dayna; Lynch, Cynthia Subject: RE: medical marijuana Hi Jesie ~ See below. Dayna makes a good point. Let's discuss this next week. Thanks. From: Browne, Dayna ‘Sent: Friday, April 02, 2010 4:16 PM To: Marsh, Sharon; Lynch, Cynthia ‘Subject: medical marijuana Importance: High Hi Sharon and Cynthia, Documents: 1 -3.0f3__ _ Hit | Effective No. |\Class Description | Status Date |Type |\Note ||Trilateral T || 005 |[Processed plant matter for medicinal ‘A | ovaprid || G | N ses, namely, medical marijuana | 2 I[ 010 |[Smoking pipes for medical use, namely, A | Ol Apri0 | G ifor smoking medical marijuana 2 _ | | 3 || 035 |/Medical marijuana procurement services ‘A | 04Mar10]/ Ss | N | | |for medical marijuana patients _ L__ | Dayna J. Browne Senior Attorney Law Office 104 Ph: 871.272.8361 Fx: 571.273.8361 4/20/10 Page 30838Browne, Dayna From: Browne, Dayna ‘Sent: Monday, April05, 2010 8:56 AM To: —_Doninger, Chris Subject: RE: medical marijuana From: Doninger, Chris” Sent: Monday, April 05, 2010 06:00 To: Browne, Dayna ‘Subject: RE: medical marijuana From: Browne, Dayna Sent: Friday, April 02, 2010 4:36 PM To: Doninger, Chris Subject: FW: medical marijuana (b)(5), : From: Marsh, Sharon Sent: Friday, April 02, 2010 4:29 PM To: Roberts, Jessie Ce: Browne, Dayna; Lynch, Cynthia Subject: RE: medical marijuana Hi Jesie ~ See below. Dayna makes a good point. Let's discuss this next week Thanks From: Browne, Dayna Sent: Friday, Apri 02, 2010 4:16 PM. To: Marsh, Sharon; Lynch, Cynthia Subject: medical marijuana sPrero” 4/20/2010Page 2 of 2 Importance: High Hi Sharon and Cynthia, Documents: 1-3 of 3 Hit Effective No._|Class Description [Status ||__Date_|Type Note |[Tritaterat 1 |] 005 [Processed plant matter for medicinal A |o1Aprio | G JN purposes, namely, medical marijuana ee 2 |[ 010 Smoking pipes for medical use, namely, || A |[ 01 Apri0 | G || N {or smoking medical marijuana - 3° |] 035 [Medical marijuana procurement services. | A | 04Mar 10] S || N for medical marijuana pati Dayna J. Browne Senior Attorney Law Office 104 Ph: 871.272.8361 Fx 671.273.8361 SPTOFOI 4g 19, Page 6035Page | of 9 Browne, Dayna From: Browne, Dayna Sent: Friday, Aprit 02, 2010 4:44 PM To: Baird, Michael ‘Subject: RE: ID Manual Update April 1, 2010 Documents: 1-3 of 3 Hit Effective To No. ||Class | Description [Status |__Date__||Type [Note | Trilateral 1 |[ 005 ][Processed plant matter for medicinal A | 01 Apr10]/ G JPN wurposes, namely, medical marijuana _ | 2 [010 |[Smoking pipes for medical use, namely, A | 01 Aprl0 N {for smoking medical marijuana 3. [035 [Medical marijuana procurement services | A || 04Mar10]/ S || N |___|for medical marijuana patients From: Baird, Michael Sent: Friday, April 02, 2010 2:41 PM To: Browne, Dayna ‘Subject: FW: ID Manual Update April 1, 2010 | should have copied you on this . . but fee! free to chime in, From: Baird, Michae! Sent: Friday, April 02, 2010 2:40 PM To: 1D/Class ‘Subject: RE: ID Manual Update April 1, 2010 From: Miller, Monique Sent: Friday, April 02, 2010 2:18 PM SPTOFOA 4790/2010 Page 20425,Page 2 of 9 To: Baird, Michael; Beck, Loretta; Berk, Steven; Beverly, Josette; Bishop, Leslie; Bonnet, Odette; Brody, Daniel; Brown, Brian (TM); Browne, Dayna; Bryan-Johnson, Hellen (Law Office 114); Doninger, Chris; Front, Mitchell; Golden, Brett; Hamilton, Michael; Hayash, Susan; Howell, Tom; Jordan, Ameeta; Kazazian, Michael; Krehely, Kim; Lawrence, Andrew; Le, Margaret; Levy, Michael; Lincoski, John; Lorenzo, Robert; Pedersen, Chris; Rupp, Terry; Sparrow, Mary; Stokols, Gwen; Strzyz, Karen; Sussman, Ron; Taylor, Craig; Vavonese, Dan; Vicek, Tomas; Wahlberg, Stacy; Wilson, Angela; Peska, Kevin; Williams, Ron (TM); Hershkowitz, Meryl; Tanner, Michael Ce: Roberts, Jessie Subject: ID Manual Update April 1, 2010 Below are the identifications that were added to the ID Manual on April 1, 2010. Please feel free to forward this information to the examining attorneys in your law offices. Many thanks Monique C. Miler Trademark Attorney-ID/Class Office of the Commissioner for Trademarks US. Patent & Trademark Office (511) 272-9347 134 identifications were added to the ID Manual on April 1, 2010. Many of the new entries are Trilateral Identifications. A Trilateral Identification is an identification that will be accepted in trademark applications filed with the United States Patent and Trademark Office, the European Office for the Harmonization in the Internal Market (OHIM) and the Japan Patent Office (JPO). A Trilateral Identification is indicated by the letter "T" in the column under the heading "Trilateral." The column “Internal (i) and Outside(o)" has been added to this e-mail to designate which non- Trilateral ID entries are based on internal suggestions or questions received in the ID/Class mailbox and which entries are based on suggestions from our customers outside of the PTO. The following Notes was added to the Manual 007 Winches 4-41-10 - Most winches are power operated, therefore, the specification is not included in this Class 7 1D. If ‘a winch is hand-operated, that must be specified in the ID and itis in Class 8. (028 Containers used in playing a GPS-based treasure hunt game 4-1-10 - GEOCACHING was deleted from the end of the 3/27/08 entry because itis a registered mark for information about a GPS-based treasure hunt game (RN 2619174) 041 Arranging and conducting special events 41-40 - This activity encompasses arranging and conducting of events other than those related to business functions. Below is a link to the April 1, 2010, update http //atiasinetacgi/nph-brs?- seci2=THESOFF§: LURON&pg1=€D8s1=201004018IsMAXSsect=IDML 2Fnelahtmi%2Ftidm.nimi&r=O8F=S SPTOFOK snopoi9ssPrO FOU Documents: | ~ 134 of 134 Page 3 of 9 : ; Tifecine ntrn ee wns BS Toe fro [rte fier Ft origin namely, . pressed carbon briquettes, Aprt0. 6 f P Hod gs fra -_ apet06 os By-product of te poscng of : sreals for medical purposes: ieee [ed i ius tale or medial Se I ion Ihapeio ho 5 ie, aod Iapeio 5 fora wien repens i-Aprl0 (6 esd plant mater for edicinal purposes, namely, |. h-Ape-t0. fc deal narjeana I arsaparila for medical purposes [A ‘fape-i0 fr rs ars aD : i cal po ene der as i Electrical ote gander rape ir 2 feecrical juice extractors for fruit fpapeo 6 t lca agus for and I ete I-ap-t0 i i any pra wach I-apevo f Paracas and instruments for hs }-apet0 fr weighing i Pras hat employ igh fencentaing opis tcoreenrate 6 nlightandtoaidinthe Af ape tO fonveson of unight nt lectric pees 7 Baby seals rap ie ovo Solar modules Tor : le ereeytpietiits ape t0 ciovoiic systems tha comet pb light inf lec and thermal l-Apeto ners Freeroll tr that ck the son 2 p nabling concentrating optics to [-Apr1o 6 ol 0 caker microphones A fi=Apel0_ 1G ores mt AeA Tio Presse pos ieApei9 ei pparats and savers 7 es I 10 pages apart 1-aprta lk eit devices for Kegel Freres namely pe oe so Bereta force to reat j-Avcto ’ - bd Tor hepetc pps 4720/2010 ParasISPTOFOIA Page 4 of 9 making pipes for medical use, 6 ho amely, for smoking medical a marijuana rr i iesterlisers TCApeI0 tomatic temperature regulators i 7 ie for central heating radiators f-Apr-10 i [Barbecue apparatus, namely, fuel starter in the nature of a metal -ontainer with a wooden handle into which fuel briquettes may be . ° Ht aced, it, and then poured into a -Apr-10 Poarbecue gril orth purpose of speeding up the ready to cook time barbecue fuels % In Tommodes T i Distlation apparatus nN fr 2 In lelectric dish dryers [Electrical track lighting containing 3 ni speakers integrated ito the light insure ii [Extractor hoods for Richens ir 5 in Filters for air conditioning r lonisation apparatus forthe var ° im freatment of aie [Apri : jal drying machines for Beauty 7 It fee h-ape-t0 |G : hn urifcation isalations for | re : kewage ae \ Regulating accessories for water or ° 7 apparatus and pipes era J ko in Sauna bath installations Apo iT ide-enry baths for use By the fe iM" hysically handicapped ft f-Apr-10 ie 2 i ar eollectors for heating [-Apei0_(G i 3 ln [Touchless hand drying apparatus h-Apr-t0 1 [Watering machines for agricultural . 4 -aprt0 {6 hi i -ape-to ir n i TAntitheftdeviees for vehicles [A l-Apeid (6 6 2 Bodies for vehicles I-Aprci0, i7 2 [Bumpers for automobiles Iapeid 1G ir is 2 [Direction signals for vehicles h-Ape-i0_G ir 9 12 ead-rests for vehicles seats I-Ape-i0 ji 0 1D inner tubes for eyeles -Ape-10, C ~ i 2 Ieirierated vehicles I-Apr-t0[G r - 2 2 safety seats for use in cars ns CApr-io fo ir Iss 2 hack absorbers for automobiles apo kG fr ka hicle wheel vin protectors Iraprto F 5S 2 ehicle windscreens IApe10_(G Fr 4/20/2010 Page 10 015Page | of 9 Joyner, Charles From: Baird, Michael Sent: Friday, April 08, 2010 8:05 AM To: Marsh, Sharon; Lynch, Cynthia ‘Subject: FW: ID Manual Update April 1, 2010 ron & Cynthia, “Mike From: Baird, Michael Sent: Friday, April 02, 2010 2:40 PM To: 10/Class Subject: RE: 10 Manual Update April 1, 2010 From: Miler, Monique Sent: Friday, April 02, 2010 2:18 PM To: Baird, Michael; Beck, Loretta; Berk, Steven; Beverly, Josette; Bishop, Leslie; Bonnet, Odette; Brody, Daniel; Brown, Brian (TM); Browne, Dayna; Bryan-Johnson, Hellen (Law Office 114); Doninger, Chris; Front, Mitchell; Golden, Brett; Hamilton, Michael; Hayash, Susan; Howell, Tom; Jordan, Amecta; Kazazian, Michael; Krehely, Kim; Lawrence, Andrew; Le, Margaret; Levy, Michael; Lincoski, John; Lorenzo, Robert; Pedersen, Chris; Rupp, Terry; Sparrow, Mary; Stokols, Gwen; Strzyz, Karen; Sussman, Ron; Taylor, Craig; Vavonese, Dan; Vicek, Tomas; Wahlberg, Stacy; Wilson, Angela; Peska, Kevin; Wiliams, Ron (TM); Hershkowitz, Meryl; Tanner, Michael Cc: Roberts, Jessie ‘Subject: 10 Manual Update April 1, 2010 Below are the identifications that were added to the ID Manual on Api 1, 2040. Please feel free to forward this information to the examining attorneys in your law offices. 4/22/2010 Page 180198