Comments on: Patented tax avoidance http://www.taxresearch.org.uk/Blog/2007/07/31/patented-tax-avoidance/ Richard Murphy on tax and corporate accountability Thu, 04 Dec 2008 20:42:10 +0000 http://wordpress.org/?v=2.6 By: Tax Research LLP http://www.taxresearch.org.uk/Blog/2007/07/31/patented-tax-avoidance/#comment-150676 Tax Research LLP Mon, 20 Aug 2007 14:11:55 +0000 http://www.taxresearch.org.uk/Blog/2007/07/31/patented-tax-avoidance/#comment-150676 Martin Any argument coming solely form tax professionals is worrying! Adam Smith spoke wisely when he spoke of the detriment of any group meeting together - in this case the public good is bound to be harmed. Good luck with yoiur encouragement. Richard Martin

Any argument coming solely form tax professionals is worrying! Adam Smith spoke wisely when he spoke of the detriment of any group meeting together - in this case the public good is bound to be harmed.

Good luck with yoiur encouragement.

Richard

]]> By: Martin B. Tittle http://www.taxresearch.org.uk/Blog/2007/07/31/patented-tax-avoidance/#comment-148118 Martin B. Tittle Fri, 17 Aug 2007 05:43:02 +0000 http://www.taxresearch.org.uk/Blog/2007/07/31/patented-tax-avoidance/#comment-148118 The reason tax strategies can be patented in the U.S. is that patent protection has, since the State Street case in 1998, been available for business methods, and tax strategies are viewed as a subset of business methods. As a U.S. tax lawyer, I do not disapprove of tax patents because to do so would be to endorse a subject matter restriction on patentability. The availability of subject matter restrictions on patentability would invite political interference in the patenting process, and therefore, it should be strenuously avoided. The better answer to the tax community's protests would be to weaken the presumption of validity for all patents and create a post-grant opposition system for challenging them. These are not new ideas, but rather ones that are already circulating among U.S. patent law scholars. See, for example, Mark Lemley, Doug Lichtman, and Bhaven Sampat, "What To Do About Bad Patents," available at www.law.uchicago.edu/files/lichtman/bad-patents.pdf. The problem with the U.S. tax patent debate is that all the argument is coming from the tax professionals. I have pleaded with one particularly insightful U.S. patent law scholar to enter the debate with alternative ideas, including those just mentioned, to no avail. The reason tax strategies can be patented in the U.S. is that patent protection has, since the State Street case in 1998, been available for business methods, and tax strategies are viewed as a subset of business methods.

As a U.S. tax lawyer, I do not disapprove of tax patents because to do so would be to endorse a subject matter restriction on patentability. The availability of subject matter restrictions on patentability would invite political interference in the patenting process, and therefore, it should be strenuously avoided.

The better answer to the tax community’s protests would be to weaken the presumption of validity for all patents and create a post-grant opposition system for challenging them. These are not new ideas, but rather ones that are already circulating among U.S. patent law scholars. See, for example, Mark Lemley, Doug Lichtman, and Bhaven Sampat, “What To Do About Bad Patents,” available at http://www.law.uchicago.edu/files/lichtman/bad-patents.pdf.

The problem with the U.S. tax patent debate is that all the argument is coming from the tax professionals. I have pleaded with one particularly insightful U.S. patent law scholar to enter the debate with alternative ideas, including those just mentioned, to no avail.

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