Monday, March 31, 2008
Michael B. Lang (Chapman) presents What Every Tax Lawyer Should Know About Patented Tax Strategies at Florida today as part of its Faculty Enrichment Series. Here is the abstract:
First, I will briefly provide a little patent law background to place the patenting of tax planning strategies in context. Secondly, I will briefly describe the current tax strategy patent landscape and discuss the prospects for change -- by legislation, through the judiciary and the United States Patent and Trademark Office, by Treasury action, and /or changes in the Model Rules of Professional Conduct. I will then discuss what a lawyer needs to consider in representing clients if (1) the lawyer would like to patent a tax planning idea that the lawyer has developed for a client or the lawyer owns an interest in such a patent that would be useful for the lawyer’s client or (2) the lawyer is providing tax planning advice to a client and there is a possibility that there is a patent that may cover the tax planning advice or the lawyer in fact knows that there is such a patent. These situations implicate a variety of ethical rules and provisions of Circular 230 and also raise concerns about liability for malpractice, patent infringement (especially by a client) and inducing patent infringement.