Tuesday, May 15, 2007 9:43 AM
Attorney Suzanne L. Wynn, writing at the Pension Protection Act Blog, points out in her post, Patented Plan Designs, that the
The ABA Law Journal recently published an article about patenting legal strategies. The article, by Steve Seidenberg, was published in the May edition and it titled Crisis Pending: Can a Patent on Legal Strategy Prevent a Client From Taking Your Advice? The Courts May Soon Decide.
I have not heard much about lawyers obtaining patents on legal strategies they create, but it appears that there is growing interest.
As Mr. Seidenberg's article, Crisis Pending, starts,
Imagine, before sitting down with your client to advise her about her legal options, having to consult the U.S. Patent and Trademark Office’s Web site to determine whether someone else already owns the patent to the course of action you want to suggest.
If that’s the case, you’ll have to pay the patent holder so your client can take your advice. But the patent holder also might refuse to sell you the license, limiting your client’s legal options. Then what?
Based on what the article reports (which is well worth the read, by the way), not only are tax strategies already being patented, but there are innumerable rumors regarding lawyers seeking patents on real estate and corporate law strategies.
Since issuing its first patent for a tax strategy in 2003, the Patent and Trademark Office has issued at least 52 patents covering specific tax strategies.
Another 84 published applications for tax strategy patents are pending.
But more than just tax strategies could be involved. Because parties applying for patents may keep their applications secret if they certify to the PTO that they are not seeking similar patents overseas, the legal grapevine is buzzing with rumors that legal strategy patents are pending in other practice areas, like real estate and corporate law.
Ms. Wynn, for her part, wonders
For retirement plans, an idea crops up and pretty soon it becomes common - such as cross-tested profit sharing plans using individual classification. Or think about the first guy who came up with an age-weighted design in his plan document. With the Pension Protection Act creating so many possibilities for hybrid plan designs, I thought it would be fun to check the U.S. Patent & Trademark Office.
Click here, Patented Plan Designs, if you want to see what she found out.
In the end, as Crisis Pending suggests, the development of lawyers patenting their legal strategies has been met with both horror and joy from attorneys nationwide. Apparently, the reaction mostly depending on whether the development is good or bad economic news for a given lawyer's practice.
Good stuff.