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107 Colum. L. Rev. Sidebar 1 (2007)

handle is hein.journals/sidbarc107 and id is 1 raw text is: COLUMBIA LAW REVIEW SIDEBAR VOL. 107 FEBRUARY 14, 2007 PAGES 1-3 PATENTS ON LEGAL METHODS? NO WAY! Andrew A. Schwartz* In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for legal methods, such as tax strategies, in addition to traditional inventions such as Tylenol or the telephone. Commentators-including the Commissioner of Internal Revenue, the General Counsel of the Patent Office, and the Chair of the ABA Intellectual Property Law Section-have accepted the Patent Office's power to grant legal method patents (as a type of business method, which were ruled patentable by the federal courts in 1998), but at the same time have criticized this new type of patent on policy grounds. The policy concerns surrounding legal method patents are significant. Although the patent system is designed to prevent latecomers from free riding on another's invention, thus reducing the incentive to invent in the first place, the public has always been actively encouraged to free ride on legal developments. Indeed, that is the whole point of legal precedent: to establish rules of law that all must obey. There is something deeply disturbing about granting a private citizen a monopoly, enforceable by the courts, over a method of complying with the tax code or, for that matter, any other law. Moreover, no attorney wants to pause before advising a client in order to run a patent search to make sure that no one owns the advice she is about to give. And what client wants to pay extra to his or her lawyer to cover licensing fees? Although granting patents to tax strategies has been a subject of policy debate, noticeably absent from this discussion has been any consideration of whether legal methods, including tax strategies, are patentable in the first place. At a recent hearing of a House Ways and Means Subcommittee on issues relating to the patenting of tax advice, * Mr. Schwartz, an associate in the law firn of Wachtell, Lipton, Rosen & Katz, is a registered patent attorney. This article is premised on his work, Andrew A. Schwartz, The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, 20 Harv. J.L. & Tech. 333 (2007). I

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