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Patents on Tax Reduction Strategies a Problem 217

EsonLinji writes "The International Herald Tribune has an article about how some lawyers are realising that patents on tax reduction strategies (a business method) might be a problem. The article states that there are already 50 such patents with more on the way, and at least one lawsuit. Particularly worrying is the idea of needing a license to follow the law. Fortunately, some of the laws get that this is a problem. Tax patents, the lawyers wrote, amount to 'government-issued barbed wire' to keep some taxpayers from getting equal treatment under the tax code."
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Patents on Tax Reduction Strategies a Problem

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  • What? (Score:5, Funny)

    by Stellian ( 673475 ) on Saturday October 21, 2006 @03:41AM (#16526489)
    No patents on tax increases?
    • Re: (Score:3, Insightful)

      No patents on tax increases?

      Who needs a patent when you have a monopoly?
    • by wanax ( 46819 )
      No, but you could probably patent methods for lobbying congress for tax increases or decreases in the interest of specific clients, and if you got it you might be able to shutdown a lot of lobbying efforts.
    • by Memnos ( 937795 )
      Good God man! Only patent holders could raise taxes? Think of the children while you're fighting terrorism and the USPTO!
    • Re:What? (Score:4, Insightful)

      by msobkow ( 48369 ) on Saturday October 21, 2006 @01:12PM (#16529121) Homepage Journal


      It's a matter of time before the remains of SCO patent the use of patent lawsuits as a business model. The hope would be to get into a lawsuit over that patent, creating a potential infinite recursion and thereby an infinite revenue stream out of thin air. :p

  • by Harmonious Botch ( 921977 ) * on Saturday October 21, 2006 @03:43AM (#16526501) Homepage Journal
    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    ( and, yes, it does say 'state', but the US Supreme Court has ruled that this usually applies to federal law also. )
    • by Memnos ( 937795 ) on Saturday October 21, 2006 @04:12AM (#16526591) Journal
      In my observation of recent government policies and behaviors, I had concluded that the document that you referenced (Original and Amendments) was no longer in force. Was I in error? Please clarify.
      • Re: (Score:3, Informative)

        by Anonymous Coward
        No, you're 100% correct. The document you're referring to is cle_7779.shtml []">"Just a goddamned piece of paper". And while some may say that this quote is only hearsay, actions speak far louder than words anyway.

        • by Planar ( 126167 ) on Saturday October 21, 2006 @06:27AM (#16527039)
          It had better be hearsay, because coming from someone who has sworn to uphold and defend the constitution, it is nothing less than treason.
          • Re: (Score:3, Insightful)

            he's also called US T-bills 'worthless pieces of paper' or something to that effect. which is also unconstitutional. so it's a pattern.

            then again, i never was a fan of that amendment, as it seems to counter the first.
            • by Memnos ( 937795 )
              How so? Not a criticism, I just want to hear your reasoning.
              • Re: (Score:3, Informative)

                by terrymr ( 316118 ) *
                Fourteenth ammendment, section 4:

                "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."
        • by TubeSteak ( 669689 ) on Saturday October 21, 2006 @12:11PM (#16528687) Journal
          No, you're 100% incorrect.

          I honestly don't know why that meme is still floating around the interwebs. The guy at capitolhillblue was the only person to push this story and he did it with anonymous sources.

          If you read here [] it has the followup article CHB wrote 3 days later, titled "Where there's smoke, there's ire" which CHB pulled from his own site

          "This article has been removed from our database because the source could not be verified." []

          It surprises me that he repeats the same claim just a week ago []

          Not to mention that he first claims he heard it from 3 sources, then later changed it to two sources. The man reported shiat either he or someone else made up.

          I honestly don't care about getting modded up, but please mod down the AC.
      • You are in error.
    • Licensing "Plan B" (Score:5, Insightful)

      by kripkenstein ( 913150 ) on Saturday October 21, 2006 @04:48AM (#16526703) Homepage
      "nor deny to any person within its jurisdiction the equal protection of the laws."

      Good point. But until this is 'noticed' by the courts, there are some further worrying questions. One is that there is nothing specific about patenting 'business methods' related to tax law, as opposed to other branches of law, as far as I can see. So, why not patent a type of defense in criminal law? Not that this topic is funny, but imagine for humor's sake "Plan B" from The Practice or "the Chewbacca Defense" from South Park being patented.
      • by rtb61 ( 674572 ) on Saturday October 21, 2006 @06:23AM (#16527025) Homepage
        Even more interesting, how about when the patent holder attempts to sue the tax office for patent infringement, when the Tax office changes the law to close of that patented tax loophole. The claim would be for a percentage of all government taxation that could have been avoided via the use of that tax loophole for the life of the patent.
      • Re: (Score:3, Interesting)

        by merkhet ( 829234 )
        I'm actually writing a paper in my patent seminar on this particular topic. In the Ways and Means Hearing on this topic, this exact point was brought up. The response was that the "novelty" requirement (35 USC 102) in patent law would keep the most basic and well-known strategies from being patented. However, this leaves open those strategies that are less well-known or not yet developed techniques for patenting.
      • I think I should patent the process of suing someone who patents an idea that has prior art.
    • That is done every day..

      Watch the constant attack on the 1st and 2nd amendments by the states ( and feds )
      • the state can ignore the 2nd amendment all it wants. that amendment only applies to the feds.

        now the first, that's different.
        • by espo812 ( 261758 )

          the state can ignore the 2nd amendment all it wants.

          Not true.

          that amendment only applies to the feds.

          The First Amendment, and all of the Bill of Rights, only applied to the federal government until the Fourteenth Amendment [] was passed in 1866. This amendment states, in part, "[...] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." This is what applied the First, Second, and the rest of the Bill of Rights to the states.

          now the

      • The 2nd doesn't apply to the states yet. You want it to apply? Go to court, get a case up to the Supreme Court.
        • by nurb432 ( 527695 )
          The states are breaking the law.

          Unfortunately, currently in this country getting justice requires you to pay for it. The people that are fighting to restrict my god given rights have somewhat larger pocketbooks.
        • by espo812 ( 261758 )

          The 2nd doesn't apply to the states yet.

          By this logic the First Amendment does not apply to the states yet either (after all, it only mentions Congress, not states.) However, this logic is flawed. The Fourteenth Amendment [] clearly states, "[...] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." This means that privileges, such as the First and Second and all other amendments, apply to the states (note this was ratified in 1866, so

          • By this logic the First Amendment does not apply to the states yet either
            No, because a court case has decided that the First Amendment applies to the states by the Fourteenth. They technically have to say the same about the Second before it applies.
    • Actually, the Supreme Court said that the 5th Amendment due process clause is what applies to the federal government, rather than the 14th, but that they both mean exactly the same thing.
    • Re: (Score:3, Interesting)

      by morleron ( 574428 ) *
      Sorry, the patents in question are not laws, they are methods to minimize the tax liability of businesses and individuals. As such, the state has no control over them except by changing the rules of the patent process to ban such patents. Furthermore, the patent holders, in general, do not forbid the use of their methods, they merely demand that you obtain a license to use them - thus enriching themselves and giving them more incentive to develop more tax-avaoidance methods that they can patent, etc. ;)

  • by pembo13 ( 770295 ) on Saturday October 21, 2006 @03:45AM (#16526507) Homepage
    One can only hope that tax and patent lawyers turn on each other and simply self destruct. Maybe then we can make up for the past few decades of apparent non accelerating advancement.
  • A Good Thing! (Score:5, Insightful)

    by Cylix ( 55374 ) on Saturday October 21, 2006 @03:45AM (#16526509) Homepage Journal
    Finally, someone was dumb enough to rock the patent boat silly.

    Granted, these will probably be killed due to certain issues... like aformentioned blurb mention.

    However, it might just be enough to get more people /read common man/ to take notice that something is just a bit wrong. Unfortunately, I don't forsee any great changes to come until wealthy men start losing out to those less fortunate. A good ol' fashioned robin hood approach to the matter could very well upset things just enough to make some real changes.

    I will make it quite simple. Rich people don't care if poor get poorer. Rich people don't care if they lose wealth to other rich people. Rich people do care if they lose wealth to poor people. You just can go around upsetting the natural balance of things.

    Yes, over the top a bit and a bit absurb, but I think I can get a few people behind my new campaign slogan.

    Vote Cylix 2008!
  • What the...? (Score:5, Insightful)

    by Kuroji ( 990107 ) <> on Saturday October 21, 2006 @03:46AM (#16526513)
    Okay, so let me get this straight...

    The gaming industry doesn't want me to make backups of my game to keep the disk from being scratched by overuse. It's infringement after all.

    The recording industry won't let me put my tunes on a mix CD because that's a type of infringement too.

    Now the government is going to ensure that I'm going to have to go to certain places to file my taxes this year because otherwise that's a different kind of infringement, patent infringement - and it doesn't matter if I read the law myself and saw that this is possible, because some tax firm in the middle of Texas came up with it as soon as the law was passed?

    Enough is enough, already!
  • Oh that's it! (Score:5, Insightful)

    by erroneus ( 253617 ) on Saturday October 21, 2006 @03:47AM (#16526517) Homepage
    I'm filing my patent on looking both ways before crossing the street. Oh yeah, and a patent on not getting a traffic citation by not speeding.

    How can you patent a business method on following the law? Let's forget for a moment how ridiculous a patent on business methods are in the first place.
    • Re:Oh that's it! (Score:5, Interesting)

      by pipatron ( 966506 ) <> on Saturday October 21, 2006 @06:53AM (#16527145) Homepage

      "How can you patent a business method on following the law?"

      Easy. It's done all the time with the law of nature, so why not with the other laws? It's even more justified to patent following this law, since it's something that we have written by ourselves. Something that should not be justified, is to patent facts, like they do in science like physics and medicine.

      • Didn't you get the memo sent out at the beginning of the previous century?

        There are no laws of nature, so your analogy fails.
  • Obviousness test (Score:5, Interesting)

    by Alain Williams ( 2972 ) <> on Saturday October 21, 2006 @03:55AM (#16526543) Homepage
    It strikes me that there is a simple obviousness test here: If shortly after a new tax law comes out several people start using the same/similar tax dodge then this is good evidence that the dodge is obvious to a reasonable tax accountant.

    If, however, a tax dodge only comes into use several years after the tax law, then I would agree that the dodge was not obvious.

    Having said that I still don't think that there should be patents on things like this, but that is another matter.

    • by Qadesh ( 998988 ) on Saturday October 21, 2006 @04:11AM (#16526589)
      I don't know - if the tax dodge was obvious to the skilled accountant you would think it would be obvious to the skilled tax law draftsperson
      • Re: (Score:3, Insightful)

        by sjames ( 1099 )

        I don't know - if the tax dodge was obvious to the skilled accountant you would think it would be obvious to the skilled tax law draftsperson

        Too bad there are so few of those in Congress. If a CEO signed without reading as often as Congressmen vote without reading, he would end up in jail. Congress also has a habit of 'patching' existing legislation which is itself a patch to a patch. When they do that, they apparently never bother to look at what will result when the patches are applied in order.


    • Re:Obviousness test (Score:4, Interesting)

      by vxvxvxvx ( 745287 ) on Saturday October 21, 2006 @04:13AM (#16526601)

      Can't help but to wonder though, if it's something many start using to avoid taxes immediately after a new tax law is released, it's probably the intended effect. Like a tax break for driving eco-friendly cars or something. If it's something that is only discovered severals years after the tax law, it's probably a loop hole that got missed when the law was being written.

      Which then brings the question, if you knew a loop hole in the law, would you tell the people who can close it about the hole by filing for a patent in use of it? Seems kinda self-defeating, sure you might get a patent for the hole but the hole will get closed that much quicker than if you had just kept your mouth shut and kept it secret.
    • by sgent ( 874402 ) on Saturday October 21, 2006 @04:13AM (#16526603)
      Your kidding right?

      Accounting firms get paid tens of millions of dollars to come up with tax hedges. It isn't all that obvious what they are doing in many cases.

      For instance, one older tax hedge -- not listed specifically in any laws -- involved forming a specific type of investment trust which purchased secured deed liens bonds of oil piplines, then reselling the interests in the trust. Using this method, the income from said trusts could be treated as operating (rather than investment) income by the holders in due course. This allowed them to prevent required liquidation (and subsequent taxation) of retained earnings in a C corp which had since converted to an S corp.

      If 1 click puchasing counts as non-obvious, the above is not even questionable.

      • Re: (Score:3, Insightful)

        by merkhet ( 829234 )
        Actually, such things would be "obvious" under the previously followed definition of "obviousness" in 35 USC 103.

        The definition used to be whether the new invention would be obvious to a "Person Having Ordinary Skill in the Art" (PHOSITA) So basically, you'd take your average tax boy and see if this would have been obvious to him based on the prior art.

        Unfortunately, the case law is in such a state that the "Person Having Ordinary Skill in the Art" is no longer the standard by which obviousness is jud

    • by Anonymous Coward on Saturday October 21, 2006 @04:21AM (#16526629)
      Hey, tax lawyers should not get it any easier than engineers. The first to invent gets the patent, unless there is published prior art that the patent examiner can find in a three-hour search. Otherwise the patent is granted. Later on, it may be possible to challenge the validity of the patent if you are sued for infringement. That's how we give incentives for technical innovations, so why would the same incentives not work on legal innovations?
    • Re: (Score:3, Insightful)

      by Kjella ( 173770 )
      It strikes me that there is a simple obviousness test here

      Tax code? Obvious? Let me be the first to say: BAHAHHAHAHAHAHHAHAHAHAAAAAAAAAA *rolls on floor laughing*
  • I'm flabbergasted. Honestly, I fucking am. This is just not fucking acceptable. Just... no. What the fucking... I mean, how the fuck.... FUCK.

    I have a request for you, world. Please end. Immediately. I really mean it. No more. It's not worth it to keep existing, y'know? We are an embarrasment to the concept of existence.

    I mean seriously, holy shit.
    • by jabex ( 320163 ) on Saturday October 21, 2006 @04:16AM (#16526613) Homepage
      I would agree with you, but unfortunately the point described in your post has already been patented as a business concept.

      Also, I own a copyright on the term "Please end." Please end(c) your use of this phrase immediately.
      • by Memnos ( 937795 )
        Unfortunately for you both, I possess the copyright on the term "pizzachrist", having first used it to describe an image seen on a pizza just outside of St. Peter's Basilica and published it via crazy people with pencils and paper. And, I have a method patent on the use of the word "fuck" (Reg. U.S. Pat. Off.), prohibiting its use in any context not referring to the act of sexual intercourse (there was prior art on that one).
  • by sstamps ( 39313 ) on Saturday October 21, 2006 @04:21AM (#16526627) Homepage
    Oh, wow, so NOW someone patents something that pinches lawyers, and it's "ZOMG! WE GOTTA DO SOMETHING ABOUT THAT!!!" from the lawyers, and all this business method patenting bullshit that has been going on for decades gets nary a finger wave all this time?

    I'm shocked. Truly.

    Even beyond the fact that patenting something has to do with obeying the laws of the land, the whole notion of patenting business methods (and many forms of software patents as well) was and has always been absurd and self-destructive.
    • by NeutronCowboy ( 896098 ) on Saturday October 21, 2006 @04:39AM (#16526679)
      And you know how they're gonna fix it? By passing a law that allows business method patents except in cases where it method involves the use of a law.

      I think #1 problem is that we have TOO MANY laws. Seriously. Cut the big book of laws to a cliff note sized booklet, and we will not have 99% of all the problems we currently have with the law. And to boot, regular citizens will actually be able to understand and follow the law themselves.
      • Re: (Score:2, Informative)

        by Anonymous Coward
        I know you're just expressing frustration, but you're doing it in a very ridiculous way.

        The reason we have so many laws is that people require clarity. Let's take for example, a paper that I am currently writing in law school. In essence, so and so was charged with a DUI, but there is sufficient evidence to show that he may have been entrapped. How do we know if he has been entrapped? There's a 2-part test. Was he induced into committing the crime, and was he predisposed to commiting it?

        Do you see the
        • I don't despise lawyers. I despise lawyers who make shit up to justify doing things that normal people *know* are destructive to society t large.

          That said, yes, you're right, it's obviously not feasible to condense all laws into 25 A6 pages. However, what I object to is the proliferation of stupid laws, and the continued existence of laws that have no reason to exist anymore. The "don't spit on Sunday's" law that probably was enacted in 1812 fits both categories. Or a tax code that has grown to 7500 pages -
      • And you know how they're gonna fix it? By passing a law that allows business method patents except in cases where it method involves the use of a law.

        Or, they could set up a huge organization to rival the IRS to send forms out to every citizen, corp, organization, etc for them to fill out annually to determine how many laws you've obeyed, and how much you owe for NOT going to jail.

        But wait..I could pay less by not obeying the law, therefor obeying the law about not using a patented method of obeying the law
      • Re: (Score:3, Insightful)

        by Kjella ( 173770 )
        I think #1 problem is that we have TOO MANY laws. Seriously. Cut the big book of laws to a cliff note sized booklet, and we will not have 99% of all the problems we currently have with the law.

        Laws are written in legalese for the same reason applications are written in programming languages, not English. Let's take a crime like murder - the layman's definition is very simple - to kill someone.

        In legal terms, you have to put up standards of intent like manslaughter, assault with fatal outcome (which is a sep
  • But what if one gets tax advice from overseas where they don't accept silly patent laws?
  • by 91degrees ( 207121 ) on Saturday October 21, 2006 @04:39AM (#16526681) Journal
    So, if I patent a method af applying for and receiving a patent, will the patent system self destruct?
    • by Alef ( 605149 )
      So, if I patent a method af applying for and receiving a patent, will the patent system self destruct?

      I suspect there would be prior art.

      But perhaps one could patent the business method of "using software patents to impede open source competitors threatening your monopoly", for example. If some company would like to prove that they have prior art, then please, be my guest.

  • by NeutronCowboy ( 896098 ) on Saturday October 21, 2006 @04:50AM (#16526705)
    "Ain't democracy great?"

    Right there is the prime reason why people are getting more and more cynical about this entire democracy thing: here, democracy has degenerated into a simple oligarchy, where the group in power is the group with money. Quite frankly, I wouldn't be surprised if in 50 years, the US would have the same political system that China has now: a central party that is in name democratic, but in practice completely static, and where ascension to posts comes strictly through internal power struggles.

    I'm really not one for doomsday scenarios, but I have to say that this kind of crap is how people get disenfranchised and the idea that they have nothing to lose anymore. And what do people do who feel they have nothing to lose? They revolt. Feh.
    • by Anonymous Coward on Saturday October 21, 2006 @05:24AM (#16526813)
      Don't forget to look at history to see itself repreating. China is a nice boogieman oligarchy to compare to but never was a democracy and has no democratic tradition. The US as it is now (with so many corporate friendly laws and taxes that you'd almost think it's inhabited only by companies not people) looks much more like Italy and germany around 1930 - 1935. The only way you can get something changed in your country if you are part of a larger block. You cannot be non-religious (you get labelled religion:atheism) or not part of a political group (only republican, democrat, libertarian or leftwing extremist, you vote according to the block you're in, not after carefull deliberation). Any political opposition gets labelled anti-american.
      There are plenty of other signs of approaching fascism in the US, but I am afraid few inside will recognise them. After all, it is unpatriottic to think such toughts, and in times of war, you should not question the army/the president/gouvernment...
    • by mblase ( 200735 )
      where the group in power is the group with money

      For my next amazing trick, I will demonstrate that 2 = 2.
  • 1. Patent "Methods for Not Committing Murder, Rapine, Robbery, Soccage-in-feif, and Barratry-on-the-high-seas."
    2. Hire a grasping, unethical lawyer.
    3. Profit!
  • by xoyoyo ( 949672 ) on Saturday October 21, 2006 @05:09AM (#16526753) that the patents are based on something that may not remain the same for the life of the patent.

    If I patent a tax avoidance scheme that involves, say, investing in a rainforest planting scheme to get a tax break (grossly simplified example) and that tax break is removed in the next budget then the patent is no longer valid.

    One of the principles of patent law is that a patent is a disclosure: in exchange for protection on your invention you provide instructions on how to implement the invention. If it's not implementable the patent is invalid - this is where those perpetual motion machines that slip through from time to time get knobbled.

    As a patent examiner cannot be certain that the "model" of the patent will work for the term of the patent they shouldn't grant it.

    Or, of course, the next US administration could implement an intellectual property regime that doesn't look like an unseemly land grab, and then spend all its time in the WTO trying to persuade the rest of us to follow suit.
    • by dwandy ( 907337 )

      and that tax break is removed in the next budget then the patent is no longer valid.

      It's still valid ... it's just worthless.

      A patent on a better horse-buggy whip thingie wan't invalidated when the horseless carriage came along ... just that no one cared about your patent any more...
      Events overtaking your idea doesn't invalidate your patent ... just renders it worthless. (where worthless means that your idea requires no protection because no one will use your idea....)

  • by jcr ( 53032 ) < .ta. .rcj.> on Saturday October 21, 2006 @05:23AM (#16526805) Journal
    We waste incredible amounts of time and money working around our Byzantine internal revenue code. There's a better way to handle this. []

    • Just to get us a bit off topic here, I must say the "Fair Tax" idea is very appealing to me and I'm pretty damned liberal. I agree with the idea that a sales tax is inherently easier to collect, and the proponents of the idea have eliminated the inherent regressiveness of a sales tax, which I like as well. There are a few problems I have with it (the rate should aim to be higher among the rich), but in theory, I think its better than the system we have. I could see some "abuse" with it though. I, for on
      • by jcr ( 53032 ) < .ta. .rcj.> on Saturday October 21, 2006 @07:14AM (#16527199) Journal
        I could see some "abuse" with it though. I, for one, would simply live like a pauper until I saved up enough money to start making decent returns on conservative investments.

        And why, exactly would that be a bad thing?

        The fact is that under our present system, the bulk of the money comes from the middle class. If you make a million bucks in a year and actually pay the AMT or the full nominal amount for that tax bracket, then you simply have an incompetent accountant. Rich people can keep their money in the bahamas, they can buy "farms" that pay them subsidies for growing weeds, they can "invest" in whatever harebrained schemes have the favor of the right congresscritters this year, they can hold "charity" parties where they spend millions to raise thousands, and the list goes on and on.

        Besides the benefit of efficiency of tax collection itself, we'd also see great improvements in our economy due to businesses being able to make decsions based on return on investment, without regard to tax consequences (since the tax consequences are always the same: you pay tax on what you spend.

        Add to that the several trillions of dollars currently held in offshore accounts that would likely be repatriated to the United States (no need for a tax shelter anymore), and you have a recipe for a lot of people being able to improve their lot in life.

        • Re: (Score:3, Interesting)

          by stinerman ( 812158 )
          And why, exactly would that be a bad thing?Not much of a bad thing, which is why I put it in quotes. I could see some politicians getting uppity about people like me living off the government dole. Realistically, I don't think you could get a bill passed that gave everyone a monthly check. Actually, once I wrote that, framing the program in those terms would pretty much assure its approval! Its the $300 rebate check all over again, only you get it EVERY MONTH.

          I'm pretty much for it, although I'd like to
          • by jcr ( 53032 )
            I'd like to tweak the percentages here and there.

            So would a lot of people, and that's why we're in the mess we are today. Maybe you want to penalize people for getting rich, while other people want to punish those who get fat, and still others want to really fuck over anyone who builds a house taller than two stories. The upshot is a massive tax code that not even the IRS can understand or explain to the taxpayers.

            The main purpose of the FairTax proposal is to remove taxation as means to push anyone's age
        • Be careful - the definition of 'rich' gets lower and lower each year. (grin) If you are in technology and are lucky enough to have a dual income, you may be shocked to find yourself paying Alternative Minimum Tax [].

          ...the Treasury Department estimated that around 15% of households with incomes between $75,000 and $100,000 must pay Alternative Minimum Tax...

          And that is not hard to do in California, for example, where 50k a year puts you at the poverty level. Even at 100k or more, there are no fantas
    • In TJ, Mexicali, Windsor, Vancouver, Niagra Falls.

      This fair tax is only fair if you think rich people would give up and not try to find ways around it.

      There wouldn't be a single car sold in Detroit, Port Huron, Seattle, Buffalo, San Diego (probably LA), or any city near Canada or Mexico.

      And that'd just be the start. Rich people would find ways to lease stuff so they never actually buy stuff (it IS a sales tax).

      We have an income tax, which made rich people find ways to never realize income, thus we had to mo
  • by Anonymous Coward on Saturday October 21, 2006 @05:57AM (#16526935)
    Software patents, the lawyers wrote, amount to 'government-issued barbed wire' to keep some software authors from competing in the open market.

    I think the USPTO should start rubber stamping patents on legal strategy, what better way to bring the entire house of cards crashing down?

  • I was watching a JDrama the other day and there's this speech I thought was quite fitting for this discussion.

    *note: Toudai = Tokyo University (basically the #1 university in Japan)

    You'll continue to lose all your life. ...
    I mean "lose" by the fact that you will be cheated.
    If you continue like that, all your life, you will be cheated. ...
    Our society has rules.
    You must follow these rules.
    And all these rules are written by smart people.
    And what does that mean?
    These rules are written by the smartest people and

  • by AngryNick ( 891056 ) on Saturday October 21, 2006 @07:46AM (#16527333) Homepage Journal
    I think the article is a bit alarmist. While in theory these planning ideas may be patentable, they are still subject to the tax laws. The article is essentially saying that if I hold a patent for a unique way of creating crystal meth then I can flout the drug laws and sue any meth lab that uses my technique. Something tells me that wouldn't fly.

    Tax shelters, and other creative interpretations of the tax code, are the bane of the IRS's existence. In the late '90s and early '00s, a few accountants went overboard with their tax planning strategies and started selling them as if they were "products", not unlike the what the law firms appear to be doing today. As a result of their marketing of products called BLIPS, FLIP, OPIS, and SOS, KPMG ended up paying the IRS $456 million dollars in penalties. Since 2003, the IRS appears to have focused on cleaning up the accounting industry and the rules around "reportable transactions" (transactions with attributes common to tax shelters) and seems to have the accountants in check. It looks like it's time to turn their attention to the lawyers.

    Just like the "confidential transactions" of the accounting industry, where the taxpayer isn't allowed to disclose the details of a transaction to others (presumably for intellectual property protections for the accountant), a lawyer holding a patent on a tax strategy will only serve to draw attention to the strategy and get the whole thing shut down.

    Boring but informative:
    From the IRS Publication 550 [] on reportable transations:

    Confidential transaction. A confidential transaction is one that is offered to you under conditions of confidentiality and for which you have paid an advisor a minimum fee. A transaction is offered under conditions of confidentiality if the advisor who is paid the fee places a limit on the disclosure of the tax treatment or tax structure on you and the limit protects the advisor's tax strategies. The transaction is treated as confidential even if the conditions of confidentiality are not legally binding on you.

    See also: Inside the KPMG mess []

  • "Particularly worrying is the idea of needing a license to follow the law."

    Ah, but how can you follow the law if you can't afford to pay the law's copyright holders [] for the right to read it?
  • I have already patented a business method for abusing the patent system in this fashion. It's time to pay up, boys!
  • Patent =! Legal (Score:3, Informative)

    by Faeton ( 522316 ) on Saturday October 21, 2006 @09:07AM (#16527649) Homepage Journal
    Just because a technique is patented doesn't mean it's legal. Technically, one could patent a new way to scam old ladies, but that wouldn't be benefitial because you could never recover any licensing fees (unless I guess you're dying to have a patent).

    Fortune Magazine has 2 good writeups about this. They say "For tax-shelter touts, the patents are a potentially deceptive marketing tool: Just because a process is "patented" doesn't mean it's legal. "A patent carries with it no assurance whatsoever that the process will pass IRS muster," IRS commissioner Mark Everson told a congressional hearing in July. Giving patent protection to even legit tax strategies alarms many experts. "If you can patent an interpretation of the tax law, why not patent anyone's legal advice?" asks Carol Harrington, a lawyer with the firm McDermott Will & Emery in Chicago."


    "'A patent carries with it no assurance whatsoever that the patented process, transaction or structure will pass IRS muster,' IRS Commissioner Mark Everson told a Congressional hearing in July. 'We are concerned, however, that taxpayers may be confused about this.'"

    You can find the links to the articles here [] and here [].

  • The sequence should have gone like this...

    1. Patent ingenious tax strategy
    2. Sell licenses for ingenious tax strategy
    3. Patent genius idea of patenting tax strategies
    4. Sell licenses to others so that they can patent their own ingenious tax strategies
  • Notes From the Field (Score:5, Informative)

    by wol ( 10606 ) on Saturday October 21, 2006 @11:27AM (#16528375)
    Disclaimer - I am a tax lawyer

    We've been discussing this internally for a few months now. Looking at the patent applications involving tax, we saw three categories of items:

    (1) claims on how to implement data tracking systems in order to pay taxes (think programs for calculating sales taxes depending on where the product is shipped).
    (2) claims on automating how to think through the tax consequences of a business deal (wow, if you do it with a database rather than pencil and paper, that should be patentable, right?) Side note: The hard part is not the algorithm, the hard part is getting the data and keeping it up to date.
    (3) claims on a certain sequence of transactions that are claimed to be non-obvious and achieve lower taxes than a different sequences of transactions.

    These have all the same problems that the software industry is dealing with: Some of this stuff has been done for decades, but is not "obvious" to a patent examiner.

    A lot of these seem to be filed for patent troll purposes - if the patent office grants the application, then the patent holder will show up at the big accounting firms and demand a payoff.

    There are a couple of interesting additional twists when this stuff starts getting applied to things like tax law. The first relates to type 1 claims (e.g. data tracking implementations). Here is where we argue that the patent system should not be allowed to put roadblocks on people's attempts to follow the law (and we are not even talking about gaming the system, just trying to be legal).

    The second tax law specific twist relates to telling the government about your new tax planning idea. A competent government would look at the idea, decide if it should be allowed, and if it doesn't like the idea, change the tax law even before the patent is granted. [Yes, you can argue whether the US has competent government, but hey, we can talk hypothetically.]

    I generally agree that the patent system is broken, we've just found additional ways to demonstrate that fact.

Our business in life is not to succeed but to continue to fail in high spirits. -- Robert Louis Stevenson