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  • Tax Strategy Patents: Why the Tax Community Should Not Exclude the Patent System

    A relatively recent phenomenon of patents covering tax saving strategies has generated an overwhelmingly negative response from the tax community. This Article reviews current patent laws in the context of tax strategy patents and business method patents (of which tax strategy patents are a subset), and then analyzes the major concerns voiced by opponents of tax strategy patents. The Article suggests that the lack of searchable prior art and patent examiner expertise are temporary problems that can and will be adequately addressed by the Patent Office and the tax community.
     
    A relatively recent phenomenon of patents covering tax saving strategies has generated an overwhelmingly negative response from the tax community. This Article reviews current patent laws in the context of tax strategy patents and business method patents (of which tax strategy patents are a subset), and then analyzes the major concerns voiced by opponents of tax strategy patents. The Article suggests that the lack of searchable prior art and patent examiner expertise are temporary problems that can and will be adequately addressed by the Patent Office and the tax community.
     
    • requiring patent applicants to base tax strategy patent applications on current tax laws, and to identify and explain the primary tax laws relevant to an alleged invention,
     
    • reviewing all tax strategy patents under a strict obviousness standard based on the recent KSR v. Teleflex Supreme Court case, and
     
    • amending the tax laws to make the use of patented tax strategies reportable transactions.
     
    Minimizing the issuance of “bad” tax strategy patents will result in a patent system whose value to the public correlates with the value of the tax planning profession as a whole. Thus, interested parties should focus their efforts not on eliminating tax strategy patents, but on increasing the quality of issued patents and improving the tax laws under which any such patents would operate.

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