You can get a U.S. patent if you invent “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” if you meet “the conditions and requirements” of U.S. Code title 35. 35 U.S.C. § 101.
The first of the four things the statute lists — a “process” — sounds a little abstract, doesn’t it? And we know that “laws of nature, physical phenomena, and abstract ideas” don’t qualify for patenting, right? Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (emphasis ours). So how do you tell if a patent that describes a “process” avoids the bar on patenting “abstract ideas”?
Easy. Does the patent talk about doing something? Making something? Using something? Something concrete, something real?
Okay, maybe not so easy.
A patent that teaches you how to get a tax break by selling a piece of real estate and then buying a second one doesn’t count as a patentable “process”, the Federal Circuit held in Frost Properties, Inc. v. Am. Master Lease LLC, No. 09-1242 (Fed. Cir. Feb. 27, 2012). The panel ruled that an “abstract concept cannot be transformed into patentable subject matter merely because of connections to the physical world”. Id., slip op. 10 (citing Bilski v. Kappos, 130 S. Ct. 3218 (2010)) (emphasis ours). The patent has to disclose a “process” that can happen in a physical sense beyond what you can see with your mind’s eye.
Listing the steps you need to take to use real estate deals to defer taxes describes an unpatentable abstract idea. So there.