Patents on Tax Strategies: Just Another Harmless Subject

This Note analyzes the subject matter eligi-bility of patents on tax strategies. In 2003, the United States Patent and Trademark Office issued the first patent explicitly covering a tax strategy. Since this decision, many other tax practitioners have attempted to patent tax strat-egies. The requirements to have a patentable tax strategy are not entirely clear, and commentators have voiced strong opinions on both sides of the patentability argument. Indeed, some feel that patents covering tax strategies are not constitu-tional or might otherwise not fit under the policy rationales upon which the patent system was built.The Note first addresses the statutory re-quirements that all patent applications must sat-isfy before receiving patent allowance. Next, the Note analyzes the policy rationales implicit in the patent system. Considering this background, the author explains how patents covering tax strategies fall within the constitutional requirements of patent-eligible subject matter and how tax strategy patents would be in line with the various policies and purposes underlying the patent system. After considering the practical implications of allowing tax strategy patents, the author concludes that recognizing tax strategy patents would be appropriate, so long as Congress took action to limit the remedies available to a holder of a tax strategy patent.

The full text of this Note is available to download as a PDF.