At the ABA tax meeting in August, the Patent and Trademark Office representative indicated that they would continue to issue patents, juding them on the regular patent eligibility issues, not on whether they were "good or bad for the public." See the BNA daily tax RealTime, August 16, 2007 (quoting PTO's Wynn Coggins.
Perhaps the most worrisome aspect of Coggins' statement is her view that the PTO is up to the task of determining the eligibility of tax strategies for patenting. She commented at the ABA meeting that the PTO has "'great expertise' in the tax area and a solid partnership with the Internal Revenue Service on this issue." I find that a significant stretch. The PTO has a number of highly trained technicians, but it does not have a stable of experienced tax lawyers. The partnership with the IRS is better than no input from the IRS, but does not result in the PTO having the expertise that it needs. It is a little like a graduate of a mid-tier law school purporting to develop tax expertise after a summer working with a few good tax lawyers on a couple of good tax deals, at best.
I'm still pinning my hopes on Congress realizing that tax strategy patents are a public policy mistake--both from the perspective of patent and tax law. There is no need to accelerate development of tax strategies so the purpose of patent law is not satisfied. And regretably, the patenting of tax strategies would likely have the effect of strengthening rather than tempering the tax minimization norm that already leads many tax advisers to lose sight of the proper boundaries on advising aggressive tax measures.
PTO's Wynn Coggins noted that "the Patent Office doesn't look at whether a patent is good or bad for the public" but whether it is truly new rather than based on prior art.