How Would S.23 Impact the Value of a New Patent?

There is much ado about the 2011 version of patent reform these days and the change from a first to invent rule to a first to file rule.  Some feel the change isn’t that different, that the interference hearings held currently seldom result in finding favorable to an alleged inventor anyway.  Others feel changes in antedating practices will be the exclusionary effect.  Yet what happens to the value of a new patent under the new law?

If Marc Kaufman of Reed Smith is correct in his description of the ingredients that make up patent value, all things being equal, there will be an inexorable, upward force on value, whatever the degree. Mr. Kaufman argues there is a secondary basis of value to patents (other than affected revenue), that of context, by which he is referring to how well-heeled the patent owner is.  Is the patent in the hands of an unsophisticated, poorly capitalized entity, or a well-funded, litigious competitor? His premise is that as you add resources to a patent prosecutor, you add value.

That being said, the argument against “FITF,” first inventor to file, is that it will tend to box out the small, unsophisticated inventors, benefiting only the larger shops, with well-oiled, patent-filing machinery already in place. If that argument is true, if only slightly, and if Mr. Kaufman’s analysis makes sense, S. 23 is packaged with a northward-pointing value vector.