Should tax lawyers be patenting their advice to clients? Should they be checking to see if their advice violates an existing patent? What should taxpayers do in a world where their tax planning strategies may be patented?

These questions and others led the ABA Section of Taxation to form a task force in October, 2006 to explore the patenting of tax-related advice. "It is an area that is just now emerging," says Tax Section chair Susan P. Serota. "We want to examine all of the issues that this raises, including what patenting means for tax lawyers and for individual taxpayers and businesses. Consumers may not be aware that patents have been granted on certain tax strategy methods."

Tax strategy patents are a part of business method patents, which have been rapidly growing in number since 1998, when the concept was approved by a federal circuit court. As of February, 2007, some 50 patents had been issued for tax-related advice, and over 80 such applications have been published. To be granted a patent, tax strategies must be considered novel, nonobvious and useful. Examiners at the Patent and Trademark Office, who are generally trained as engineers, make such determinations by looking for prior art that is available to others.

"The Task Force is looking closely at a number of issues," said Dennis Drapkin, chair of the Tax Section's Tax Strategy Patenting Task Force and former chair of the Tax Section. "We want to stimulate discussion and debate, and make policymakers aware of the issues involved. These developments could have tremendous implications for the tax system and for the practice of law in general." Vice-chair of the Task Force is Loyola Law School Professor Ellen Aprill.