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Patents on Tax Reduction Strategies a Problem

Posted by Zonk on Sat Oct 21, 2006 02:33 AM
from the genius dept.
EsonLinji writes "The International Herald Tribune has an article about how some lawyers are realising that patents on tax reduction strategies (a business method) might be a problem. The article states that there are already 50 such patents with more on the way, and at least one lawsuit. Particularly worrying is the idea of needing a license to follow the law. Fortunately, some of the laws get that this is a problem. Tax patents, the lawyers wrote, amount to 'government-issued barbed wire' to keep some taxpayers from getting equal treatment under the tax code."
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  • What? (Score:5, Funny)

    by Stellian (673475) on Saturday October 21 2006, @02:41AM (#16526489)
    No patents on tax increases?
    • No patents on tax increases?

      Who needs a patent when you have a monopoly?
        • Re:What? (Score:4, Interesting)

          by Znork (31774) on Saturday October 21 2006, @09:27AM (#16528021)
          Patents are also close to equivalent to a taxation right on a specific way to implement an idea.

          Wether handing out taxation rights to private parties really has a place in modern society and in a free market is dubious, particularly when the system is far removed from any democratic control.
    • Re:What? (Score:4, Insightful)

      by msobkow (48369) on Saturday October 21 2006, @12:12PM (#16529121) Journal

      Patience.

      It's a matter of time before the remains of SCO patent the use of patent lawsuits as a business model. The hope would be to get into a lawsuit over that patent, creating a potential infinite recursion and thereby an infinite revenue stream out of thin air. :p

  • Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    ( and, yes, it does say 'state', but the US Supreme Court has ruled that this usually applies to federal law also. )
    • by Memnos (937795) on Saturday October 21 2006, @03:12AM (#16526591) Journal
      In my observation of recent government policies and behaviors, I had concluded that the document that you referenced (Original and Amendments) was no longer in force. Was I in error? Please clarify.
      • Re: (Score:3, Informative)

        by Anonymous Coward
        No, you're 100% correct. The document you're referring to is http://www.capitolhillblue.com/artman/publish/arti cle_7779.shtml [slashdot.org]">"Just a goddamned piece of paper". And while some may say that this quote is only hearsay, actions speak far louder than words anyway.

        • by Planar (126167) on Saturday October 21 2006, @05:27AM (#16527039)
          It had better be hearsay, because coming from someone who has sworn to uphold and defend the constitution, it is nothing less than treason.
          • he's also called US T-bills 'worthless pieces of paper' or something to that effect. which is also unconstitutional. so it's a pattern.

            then again, i never was a fan of that amendment, as it seems to counter the first.
        • by TubeSteak (669689) on Saturday October 21 2006, @11:11AM (#16528687) Journal
          No, you're 100% incorrect.

          I honestly don't know why that meme is still floating around the interwebs. The guy at capitolhillblue was the only person to push this story and he did it with anonymous sources.

          If you read here [apfn.net] it has the followup article CHB wrote 3 days later, titled "Where there's smoke, there's ire" which CHB pulled from his own site

          "This article has been removed from our database because the source could not be verified." [capitolhillblue.com]

          It surprises me that he repeats the same claim just a week ago [capitolhillblue.com]

          Not to mention that he first claims he heard it from 3 sources, then later changed it to two sources. The man reported shiat either he or someone else made up.

          I honestly don't care about getting modded up, but please mod down the AC.
          • by Memnos (937795) on Saturday October 21 2006, @09:04AM (#16527901) Journal
            And with your polemics (which I am tired of hearing from either end of the spectrum) you are offering something more? Either make your attempt at satirical wit (not easy) or offer something yourself. Some suggestions:

            Balance the f'ing budget

            Try to be deft enough at foreign policy that you do not get most of the rest of the world pissed off at you.

            When striking at your enemy, prefer a swift lance in the right place versus an avalanche in the general area.

            Read Sun Tzu.

            Remember that the "goddamn piece of paper" written about 230 years ago helped make us the most respected country in the world at one time, and was specifically intended to protect us from the worst of leaders, not those that we trust.

            Constrict the ability of lobbies to buy our government policies, criticize your elected officials with reasoned arguments, accept the inevitable fact that your views are not absolutely "right", don't use all caps in your Slashdot subject line, limit your government to doing the things that only government can do well, think for yourself (at length).

            Question why you believe what you believe, as if it was a scientific question -- which of course it never will be.

            Put your neocortex in control of your verbal/written output, as opposed to your limbic system.

            Failing all of the above, stew in your own juices and try to avoid ad hominem attacks. If you find a perfect way of doing this, let me know or patent it.

            BTW, if I had to label myself it would be as a centrist-conservative, but any label now carries so much stupid baggage that I try to avoid any one of them. "More power to the Party of Thinking People" -- Oh Shit, there isn't one.

    • Licensing "Plan B" (Score:5, Insightful)

      by kripkenstein (913150) on Saturday October 21 2006, @03:48AM (#16526703) Homepage
      "nor deny to any person within its jurisdiction the equal protection of the laws."

      Good point. But until this is 'noticed' by the courts, there are some further worrying questions. One is that there is nothing specific about patenting 'business methods' related to tax law, as opposed to other branches of law, as far as I can see. So, why not patent a type of defense in criminal law? Not that this topic is funny, but imagine for humor's sake "Plan B" from The Practice or "the Chewbacca Defense" from South Park being patented.
      • by rtb61 (674572) on Saturday October 21 2006, @05:23AM (#16527025) Homepage
        Even more interesting, how about when the patent holder attempts to sue the tax office for patent infringement, when the Tax office changes the law to close of that patented tax loophole. The claim would be for a percentage of all government taxation that could have been avoided via the use of that tax loophole for the life of the patent.
      • Re: (Score:3, Interesting)

        I'm actually writing a paper in my patent seminar on this particular topic. In the Ways and Means Hearing on this topic, this exact point was brought up. The response was that the "novelty" requirement (35 USC 102) in patent law would keep the most basic and well-known strategies from being patented. However, this leaves open those strategies that are less well-known or not yet developed techniques for patenting.
    • Re: (Score:3, Interesting)

      Sorry, the patents in question are not laws, they are methods to minimize the tax liability of businesses and individuals. As such, the state has no control over them except by changing the rules of the patent process to ban such patents. Furthermore, the patent holders, in general, do not forbid the use of their methods, they merely demand that you obtain a license to use them - thus enriching themselves and giving them more incentive to develop more tax-avaoidance methods that they can patent, etc. ;)

      Ho
  • by pembo13 (770295) on Saturday October 21 2006, @02:45AM (#16526507) Homepage
    One can only hope that tax and patent lawyers turn on each other and simply self destruct. Maybe then we can make up for the past few decades of apparent non accelerating advancement.
    • by afjerntagel (962767) on Saturday October 21 2006, @04:26AM (#16526815)
      The previos poster wrote:

      "One can only hope that tax and patent lawyers turn on each other and simply self destruct."

      You work as an ecology consultant for Austraila or something?

      What if they get viable offspring, you thought of that?! /Af Jerntagel
    • by enharmonix (988983) <enharmonix+slashdot@gmail.com> on Saturday October 21 2006, @05:15AM (#16526991) Homepage
      Well, if I remember correctly, tax lawyers and patent lawyers are complimentary (same mass but opposite charge, i.e., a tax lawyer can be seen as a patent lawyer travelling the opposite direction in time), so if they ever do come into contact, they should annihilate each other in a burst of light.
  • A Good Thing! (Score:5, Insightful)

    by Cylix (55374) on Saturday October 21 2006, @02:45AM (#16526509) Homepage Journal
    Finally, someone was dumb enough to rock the patent boat silly.

    Granted, these will probably be killed due to certain issues... like aformentioned blurb mention.

    However, it might just be enough to get more people /read common man/ to take notice that something is just a bit wrong. Unfortunately, I don't forsee any great changes to come until wealthy men start losing out to those less fortunate. A good ol' fashioned robin hood approach to the matter could very well upset things just enough to make some real changes.

    I will make it quite simple. Rich people don't care if poor get poorer. Rich people don't care if they lose wealth to other rich people. Rich people do care if they lose wealth to poor people. You just can go around upsetting the natural balance of things.

    Yes, over the top a bit and a bit absurb, but I think I can get a few people behind my new campaign slogan.

    Vote Cylix 2008!
  • What the...? (Score:5, Insightful)

    by Kuroji (990107) <kuroji@gmail.com> on Saturday October 21 2006, @02:46AM (#16526513)
    Okay, so let me get this straight...

    The gaming industry doesn't want me to make backups of my game to keep the disk from being scratched by overuse. It's infringement after all.

    The recording industry won't let me put my tunes on a mix CD because that's a type of infringement too.

    Now the government is going to ensure that I'm going to have to go to certain places to file my taxes this year because otherwise that's a different kind of infringement, patent infringement - and it doesn't matter if I read the law myself and saw that this is possible, because some tax firm in the middle of Texas came up with it as soon as the law was passed?

    Enough is enough, already!
  • Oh that's it! (Score:5, Insightful)

    by erroneus (253617) on Saturday October 21 2006, @02:47AM (#16526517) Homepage
    I'm filing my patent on looking both ways before crossing the street. Oh yeah, and a patent on not getting a traffic citation by not speeding.

    How can you patent a business method on following the law? Let's forget for a moment how ridiculous a patent on business methods are in the first place.
    • Re:Oh that's it! (Score:5, Interesting)

      by pipatron (966506) <pipatron@gmail.com> on Saturday October 21 2006, @05:53AM (#16527145) Homepage

      "How can you patent a business method on following the law?"

      Easy. It's done all the time with the law of nature, so why not with the other laws? It's even more justified to patent following this law, since it's something that we have written by ourselves. Something that should not be justified, is to patent facts, like they do in science like physics and medicine.

  • Obviousness test (Score:5, Interesting)

    by Alain Williams (2972) on Saturday October 21 2006, @02:55AM (#16526543) Homepage
    It strikes me that there is a simple obviousness test here: If shortly after a new tax law comes out several people start using the same/similar tax dodge then this is good evidence that the dodge is obvious to a reasonable tax accountant.

    If, however, a tax dodge only comes into use several years after the tax law, then I would agree that the dodge was not obvious.

    Having said that I still don't think that there should be patents on things like this, but that is another matter.

    • by Qadesh (998988) on Saturday October 21 2006, @03:11AM (#16526589)
      I don't know - if the tax dodge was obvious to the skilled accountant you would think it would be obvious to the skilled tax law draftsperson
    • Re:Obviousness test (Score:4, Interesting)

      by vxvxvxvx (745287) on Saturday October 21 2006, @03:13AM (#16526601)
      Yeah.

      Can't help but to wonder though, if it's something many start using to avoid taxes immediately after a new tax law is released, it's probably the intended effect. Like a tax break for driving eco-friendly cars or something. If it's something that is only discovered severals years after the tax law, it's probably a loop hole that got missed when the law was being written.

      Which then brings the question, if you knew a loop hole in the law, would you tell the people who can close it about the hole by filing for a patent in use of it? Seems kinda self-defeating, sure you might get a patent for the hole but the hole will get closed that much quicker than if you had just kept your mouth shut and kept it secret.
    • by sgent (874402) on Saturday October 21 2006, @03:13AM (#16526603)
      Your kidding right?

      Accounting firms get paid tens of millions of dollars to come up with tax hedges. It isn't all that obvious what they are doing in many cases.

      For instance, one older tax hedge -- not listed specifically in any laws -- involved forming a specific type of investment trust which purchased secured deed liens bonds of oil piplines, then reselling the interests in the trust. Using this method, the income from said trusts could be treated as operating (rather than investment) income by the holders in due course. This allowed them to prevent required liquidation (and subsequent taxation) of retained earnings in a C corp which had since converted to an S corp.

      If 1 click puchasing counts as non-obvious, the above is not even questionable.

      • Re: (Score:3, Insightful)

        Actually, such things would be "obvious" under the previously followed definition of "obviousness" in 35 USC 103.

        The definition used to be whether the new invention would be obvious to a "Person Having Ordinary Skill in the Art" (PHOSITA) So basically, you'd take your average tax boy and see if this would have been obvious to him based on the prior art.

        Unfortunately, the case law is in such a state that the "Person Having Ordinary Skill in the Art" is no longer the standard by which obviousness is jud

    • by Anonymous Coward on Saturday October 21 2006, @03:21AM (#16526629)
      Hey, tax lawyers should not get it any easier than engineers. The first to invent gets the patent, unless there is published prior art that the patent examiner can find in a three-hour search. Otherwise the patent is granted. Later on, it may be possible to challenge the validity of the patent if you are sued for infringement. That's how we give incentives for technical innovations, so why would the same incentives not work on legal innovations?
    • Re: (Score:3, Insightful)

      It strikes me that there is a simple obviousness test here

      Tax code? Obvious? Let me be the first to say: BAHAHHAHAHAHAHHAHAHAHAAAAAAAAAA *rolls on floor laughing*
  • by sstamps (39313) on Saturday October 21 2006, @03:21AM (#16526627) Homepage
    Oh, wow, so NOW someone patents something that pinches lawyers, and it's "ZOMG! WE GOTTA DO SOMETHING ABOUT THAT!!!" from the lawyers, and all this business method patenting bullshit that has been going on for decades gets nary a finger wave all this time?

    I'm shocked. Truly.

    Even beyond the fact that patenting something has to do with obeying the laws of the land, the whole notion of patenting business methods (and many forms of software patents as well) was and has always been absurd and self-destructive.
    • by NeutronCowboy (896098) on Saturday October 21 2006, @03:39AM (#16526679)
      And you know how they're gonna fix it? By passing a law that allows business method patents except in cases where it method involves the use of a law.

      I think #1 problem is that we have TOO MANY laws. Seriously. Cut the big book of laws to a cliff note sized booklet, and we will not have 99% of all the problems we currently have with the law. And to boot, regular citizens will actually be able to understand and follow the law themselves.
      • Re: (Score:3, Insightful)

        I think #1 problem is that we have TOO MANY laws. Seriously. Cut the big book of laws to a cliff note sized booklet, and we will not have 99% of all the problems we currently have with the law.

        Laws are written in legalese for the same reason applications are written in programming languages, not English. Let's take a crime like murder - the layman's definition is very simple - to kill someone.

        In legal terms, you have to put up standards of intent like manslaughter, assault with fatal outcome (which is a sep
  • by 91degrees (207121) on Saturday October 21 2006, @03:39AM (#16526681) Journal
    So, if I patent a method af applying for and receiving a patent, will the patent system self destruct?
  • by NeutronCowboy (896098) on Saturday October 21 2006, @03:50AM (#16526705)
    "Ain't democracy great?"

    Right there is the prime reason why people are getting more and more cynical about this entire democracy thing: here, democracy has degenerated into a simple oligarchy, where the group in power is the group with money. Quite frankly, I wouldn't be surprised if in 50 years, the US would have the same political system that China has now: a central party that is in name democratic, but in practice completely static, and where ascension to posts comes strictly through internal power struggles.

    I'm really not one for doomsday scenarios, but I have to say that this kind of crap is how people get disenfranchised and the idea that they have nothing to lose anymore. And what do people do who feel they have nothing to lose? They revolt. Feh.
    • by Anonymous Coward on Saturday October 21 2006, @04:24AM (#16526813)
      Don't forget to look at history to see itself repreating. China is a nice boogieman oligarchy to compare to but never was a democracy and has no democratic tradition. The US as it is now (with so many corporate friendly laws and taxes that you'd almost think it's inhabited only by companies not people) looks much more like Italy and germany around 1930 - 1935. The only way you can get something changed in your country if you are part of a larger block. You cannot be non-religious (you get labelled religion:atheism) or not part of a political group (only republican, democrat, libertarian or leftwing extremist, you vote according to the block you're in, not after carefull deliberation). Any political opposition gets labelled anti-american.
      There are plenty of other signs of approaching fascism in the US, but I am afraid few inside will recognise them. After all, it is unpatriottic to think such toughts, and in times of war, you should not question the army/the president/gouvernment...
  • by xoyoyo (949672) on Saturday October 21 2006, @04:09AM (#16526753)
    ...is that the patents are based on something that may not remain the same for the life of the patent.

    If I patent a tax avoidance scheme that involves, say, investing in a rainforest planting scheme to get a tax break (grossly simplified example) and that tax break is removed in the next budget then the patent is no longer valid.

    One of the principles of patent law is that a patent is a disclosure: in exchange for protection on your invention you provide instructions on how to implement the invention. If it's not implementable the patent is invalid - this is where those perpetual motion machines that slip through from time to time get knobbled.

    As a patent examiner cannot be certain that the "model" of the patent will work for the term of the patent they shouldn't grant it.

    Or, of course, the next US administration could implement an intellectual property regime that doesn't look like an unseemly land grab, and then spend all its time in the WTO trying to persuade the rest of us to follow suit.
  • by jcr (53032) <jcr&mac,com> on Saturday October 21 2006, @04:23AM (#16526805) Journal
    We waste incredible amounts of time and money working around our Byzantine internal revenue code. There's a better way to handle this. [fairtax.org]

    -jcr
      • by jcr (53032) <jcr&mac,com> on Saturday October 21 2006, @06:14AM (#16527199) Journal
        I could see some "abuse" with it though. I, for one, would simply live like a pauper until I saved up enough money to start making decent returns on conservative investments.

        And why, exactly would that be a bad thing?

        The fact is that under our present system, the bulk of the money comes from the middle class. If you make a million bucks in a year and actually pay the AMT or the full nominal amount for that tax bracket, then you simply have an incompetent accountant. Rich people can keep their money in the bahamas, they can buy "farms" that pay them subsidies for growing weeds, they can "invest" in whatever harebrained schemes have the favor of the right congresscritters this year, they can hold "charity" parties where they spend millions to raise thousands, and the list goes on and on.

        Besides the benefit of efficiency of tax collection itself, we'd also see great improvements in our economy due to businesses being able to make decsions based on return on investment, without regard to tax consequences (since the tax consequences are always the same: you pay tax on what you spend.

        Add to that the several trillions of dollars currently held in offshore accounts that would likely be repatriated to the United States (no need for a tax shelter anymore), and you have a recipe for a lot of people being able to improve their lot in life.

        -jcr
        • Re: (Score:3, Interesting)

          And why, exactly would that be a bad thing?Not much of a bad thing, which is why I put it in quotes. I could see some politicians getting uppity about people like me living off the government dole. Realistically, I don't think you could get a bill passed that gave everyone a monthly check. Actually, once I wrote that, framing the program in those terms would pretty much assure its approval! Its the $300 rebate check all over again, only you get it EVERY MONTH.

          I'm pretty much for it, although I'd like to
  • by Anonymous Coward on Saturday October 21 2006, @04:57AM (#16526935)
    Software patents, the lawyers wrote, amount to 'government-issued barbed wire' to keep some software authors from competing in the open market.

    I think the USPTO should start rubber stamping patents on legal strategy, what better way to bring the entire house of cards crashing down?

  • by AngryNick (891056) on Saturday October 21 2006, @06:46AM (#16527333) Homepage Journal
    I think the article is a bit alarmist. While in theory these planning ideas may be patentable, they are still subject to the tax laws. The article is essentially saying that if I hold a patent for a unique way of creating crystal meth then I can flout the drug laws and sue any meth lab that uses my technique. Something tells me that wouldn't fly.

    Tax shelters, and other creative interpretations of the tax code, are the bane of the IRS's existence. In the late '90s and early '00s, a few accountants went overboard with their tax planning strategies and started selling them as if they were "products", not unlike the what the law firms appear to be doing today. As a result of their marketing of products called BLIPS, FLIP, OPIS, and SOS, KPMG ended up paying the IRS $456 million dollars in penalties. Since 2003, the IRS appears to have focused on cleaning up the accounting industry and the rules around "reportable transactions" (transactions with attributes common to tax shelters) and seems to have the accountants in check. It looks like it's time to turn their attention to the lawyers.

    Just like the "confidential transactions" of the accounting industry, where the taxpayer isn't allowed to disclose the details of a transaction to others (presumably for intellectual property protections for the accountant), a lawyer holding a patent on a tax strategy will only serve to draw attention to the strategy and get the whole thing shut down.

    Boring but informative:
    From the IRS Publication 550 [irs.gov] on reportable transations:

    Confidential transaction. A confidential transaction is one that is offered to you under conditions of confidentiality and for which you have paid an advisor a minimum fee. A transaction is offered under conditions of confidentiality if the advisor who is paid the fee places a limit on the disclosure of the tax treatment or tax structure on you and the limit protects the advisor's tax strategies. The transaction is treated as confidential even if the conditions of confidentiality are not legally binding on you.

    See also: Inside the KPMG mess [businessweek.com]

  • Patent =! Legal (Score:3, Informative)

    by Faeton (522316) on Saturday October 21 2006, @08:07AM (#16527649) Homepage Journal
    Just because a technique is patented doesn't mean it's legal. Technically, one could patent a new way to scam old ladies, but that wouldn't be benefitial because you could never recover any licensing fees (unless I guess you're dying to have a patent).

    Fortune Magazine has 2 good writeups about this. They say "For tax-shelter touts, the patents are a potentially deceptive marketing tool: Just because a process is "patented" doesn't mean it's legal. "A patent carries with it no assurance whatsoever that the process will pass IRS muster," IRS commissioner Mark Everson told a congressional hearing in July. Giving patent protection to even legit tax strategies alarms many experts. "If you can patent an interpretation of the tax law, why not patent anyone's legal advice?" asks Carol Harrington, a lawyer with the firm McDermott Will & Emery in Chicago."

    and

    "'A patent carries with it no assurance whatsoever that the patented process, transaction or structure will pass IRS muster,' IRS Commissioner Mark Everson told a Congressional hearing in July. 'We are concerned, however, that taxpayers may be confused about this.'"

    You can find the links to the articles here [cnn.com] and here [cnn.com].

  • Notes From the Field (Score:5, Informative)

    by wol (10606) on Saturday October 21 2006, @10:27AM (#16528375)
    Disclaimer - I am a tax lawyer

    We've been discussing this internally for a few months now. Looking at the patent applications involving tax, we saw three categories of items:

    (1) claims on how to implement data tracking systems in order to pay taxes (think programs for calculating sales taxes depending on where the product is shipped).
    (2) claims on automating how to think through the tax consequences of a business deal (wow, if you do it with a database rather than pencil and paper, that should be patentable, right?) Side note: The hard part is not the algorithm, the hard part is getting the data and keeping it up to date.
    (3) claims on a certain sequence of transactions that are claimed to be non-obvious and achieve lower taxes than a different sequences of transactions.

    These have all the same problems that the software industry is dealing with: Some of this stuff has been done for decades, but is not "obvious" to a patent examiner.

    A lot of these seem to be filed for patent troll purposes - if the patent office grants the application, then the patent holder will show up at the big accounting firms and demand a payoff.

    There are a couple of interesting additional twists when this stuff starts getting applied to things like tax law. The first relates to type 1 claims (e.g. data tracking implementations). Here is where we argue that the patent system should not be allowed to put roadblocks on people's attempts to follow the law (and we are not even talking about gaming the system, just trying to be legal).

    The second tax law specific twist relates to telling the government about your new tax planning idea. A competent government would look at the idea, decide if it should be allowed, and if it doesn't like the idea, change the tax law even before the patent is granted. [Yes, you can argue whether the US has competent government, but hey, we can talk hypothetically.]

    I generally agree that the patent system is broken, we've just found additional ways to demonstrate that fact.

    • by jabex (320163) on Saturday October 21 2006, @03:16AM (#16526613) Homepage
      I would agree with you, but unfortunately the point described in your post has already been patented as a business concept.

      Also, I own a copyright on the term "Please end." Please end(c) your use of this phrase immediately.
    • Re: (Score:3, Informative)

      That line may not mean [mail-archive.com] what you think it means.
    • by hey! (33014) on Saturday October 21 2006, @07:51AM (#16527573) Homepage Journal
      "The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers."

      I'm a software engineer. I work in Windows, and frequently have to work with ** shudder ** Microsoft SQL Server. Now, I'd much rather work in Unix; or maybe something better. But if you start making lots of stipulations about what you're willing to work with, you'll find it harder to find work period. My choices of systems are constrained by my customers' choices.

      Why is this relevant?

      I suspect most lawyers, if they could, would change a number of laws. That's probably why many lawyers decide to become politicians; but for the vast majority that don't, they're stuck working with what they have or not working at all.

      It always sticks in my craw when politicians use lawyers for scapegoats. The lawyers are just making a living with what the politicians hand them.

      Now it is true that business patents started after a court decision allowing them; however that court decision interpreted a statute, which happened to have an unintended consequence. It has been within the power of politicans ever since to fix this oversight, but they haven't because the average person is much less important to them than people seeking to turn business practices into a form of property.