Congress aimed to prohibit the patenting of tax strategies when it passed the Leahy-Smith America Invest Act — but such strategies "were never really patentable," Buchanan Ingersoll & Rooney Intellectual Property Shareholder Charles F. Wieland III told BNA in an article published September 27, 2011.

"The attempt was to inhibit or stop the patenting of tax strategies," Wieland explained. He gave the example of a pension plan design — U.S. Published Patent Application No. 2007/0055605 — that was rejected "as being direct to non-patentable subject matter," and was abandoned by the applicant.

"The tax code has become so complicated that finding a way through it is viewed as a patent-worthy discovery," Wieland said. But rather than stopping tax-related patents altogether, Leahy-Smith "will really only promote more careful patent application drafting," he concluded.

"A clever patent attorney can still effectively capture an implementation of a tax strategy" if the implementation involves what the Leahy-Smith Act calls "a method, apparatus, technology, computer program, product, or system" for tax, file or finance management — like TurboTax — Wieland explained.

"The tax community doesn't seem to have efficient ways to disseminate these strategies broadly, so they are essentially kept as trade secrets," Wieland continued. Patenting tax-implementing computer programs "may act as a vehicle to permit the tax community to share these strategies more effectively."

In the end, the Leahy-Smith Act is unlikely to have a broad impact. "The reality is that this was a very small problem," Wieland said of patenting tax-implementation strategies.

"I don't think we're ever going to see a case dealing with the implementation of this law."

Next year, a provision of Leahy-Smith will go into effect, permitting challenges to patents for business methods. Tax strategies make up only a small portion of these business methods patents, Wieland pointed out.

According to Wieland, the provision aimed "to find a cheaper way that litigation" to challenge business methods patents. Unless it's reauthorized, the provision will expire after eight years, Wieland concluded.