Should All Lawyers Join Peer-to-Patent?

Paul Caron has been covering patents on tax strategies for some time, and an article by Steve Seidenberg in the ABA Journal has recently described the growing worries they’re creating among practitioners:

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. . . .In the ABA Section of Taxation, “members are shocked and dismayed at the very idea that legal advice can be patented,” says Drapkin [who heads the section’s Tax Strategy Patenting Task Force].

Apparently it’s not just tax lawyers who should be worried about a chain reaction of IP claims here. Drapkin says that “I’ve had conversations with lawyers who told me about corporate law patents that have been applied for,” and Wachtell lawyer Andrew A. Schwartz says “There could be hundreds, even thousands, of legal [strategy] patent applications that the PTO is waiting to rule on.” The chair-elect of the ABA section on IP law isn’t worried, but even she might be dismayed by rumors that someone is filing a “patent application for a new way of preparing patent applications.”

I’d personally like to see something like an extension of Veeck’s principles in both copyright and patent. In that case, the 5th Circuit ruled that a model building code entered the public domain once it was adopted as law. Good legal arguments are effectively an interpretation of law, an effort to get the judge or jury to see the law in a certain way. To the extent they are adopted, they should be considered so inextricably intertwined with the development of law itself that they are by nature public property. For that reason I’d even be hesitant to grant copyright protection to the expression of legal arguments, and I’m doubly suspicious of a patent on the ideas at their core.

On the other hand, given the increasing scope of patent protection, I don’t foresee arguments like mine going very far in the current PTO or Federal Circuit. . . and the Supreme Court ultimately declined to limit the scope of patents in a recent situation where it appeared they might.

So what is to be done? Beth Noveck’s Peer to Patent Project offers an exciting and innovative approach to the problem. . .

As her website relates,

With the support of grants from the Omidyar Network, IBM, Microsoft, HP, GE, Oracle and Red Hat, Professor Noveck is developing the Community Patent Review project, the legal, policy and software framework to open patent examination for public participation. The project was named by the United States Patent and Trademark Office as one of its Strategic Initiatives 2007-2012. This is the first social software project to directly impact federal decision making.

You can check out the process here. I’m predicting people like Drapkin, who are worried about the prospect of patent law swallowing tax practices, will try to submit for review patent applications like “Springing Interests Flowing from Benefits That Run with the Land (patent pending 11/176,724).” By submitting prior art, participants can at least make it clear to a patent examiner that a given patent application is not as novel or nonobvious as its submitter wants to make it seem.

It remains to be seen whether the collective action problem here can be overcome. However, perhaps firms with large enought tax and T&E practices will find it worthwhile to get involved. As Sabrina Safrin notes, improvident grants of property rights can spur a destructive arms race of propertization:

[T]he expansion of intellectual and other property rights have an internally generative dynamic. . . . The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. [Given these dynamics, we can anticipate] the development of unexpected, extensive and ultimately undesirable property regimes.

Noveck’s Peer to Patent is a brilliant idea for avoiding such wasteful enclosures of ideas and methods that should be “free as air to common use.”

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