First, to confirm Dennis’s anecdotal belief on the main page that firms are moving toward trade secrets, I heard that repeatedly at the IMPI conference, which had chief IP counsel from lots of big players. Any benefit that the quid-pro-quo of our system is eroded by Myriad and CLS. I have no clue whether that affects stock liquidity, but it sounds intuitively correct.
But, I’m writing because what I heard, and what others are saying on line, are making me concerned that the enormous impact on patent value represented by Myriad and CLS, and the years of absolute confusion that we’re facing, may trigger disclosure obligations by lawyers in some circumstances. While most firms, I am told, do not capitalize patents, some do. Sarbanes Oxley could be implicated by that. In M&A transactions, valuation statements need to be thought through. Google, for example, after it recently acquired a slew of patents said it had acquired certain value of patents. That value is down.
Here is what one author has said:
It would be an unwise publicly-traded tech company in the US that is not currently doing a full audit of its patent portfolio to assess where it stands in this post-Alice world.
I’m not sure that’s good advice. I am sure that, without legislative investigation, consideration of actual policies and data, the Supreme Court has radically changed our patent system.
What a mess. Read the statute, Supreme Court. Read the statute.