美国避税方法专利的司法实践及立法规制

Judicial Practices and Legislative Progress Regarding Tax Strategy Patents in U.S.A

在美国,避税方法或系统作为以实现避税为目的的策略性筹划工具,在其走向专利化的进程中,一度引发了知识产权与税务两大从业群体的大论战,继而引发出一系列国会立法提案,并最终以2011年《美国发明法案》的颁布实施暂告终结。避税方法专利化的争议焦点在于:税务与专利两大法律体系之间的冲突、避税方法专利审查中的现有技术判断以及体系冲突下的职业伦理困境。

In the United States, as a strategic tool to reduce, minimize, aviod, or defer a taxpayer＇s tax liabil- ity, tax strategy or tax shelter has been widely used in the tax service industry. The patentability of tax strategy has ever aroused a big dispute between intellectual property and tax practitioners, and eventually triggered a se- ries of congress litigations. The controversy was ended by the enactment of the new America Invents Act in Sep- tember 2011. Based on a thorough analysis of the relevant legal provisions, judicial tices, and the milestone case of tax strategy patents, this paper sheds some hght on the relevant legislation. A conclusive review of the new act regarding the tax strategy and patent examination prac- those controversial topics and patent has been given finally.