I've had the unfortunate experience of being both sides of the patent fence - defending IP and defending claims of infringement. The experiences left me both frustrated and with a deeper understanding of the complexity of patent reform. After many months and years of struggling with legal nuances and arguments that have nothing to do with the true validity of a unique invention claim, the results often leave both parties with a sense of empty accomplishment and a question of "isn't there a better way".
Spend anytime in the patent world (sorry if you've had to) and you'll quickly realize that the one thing the current system does really well is perpetuate attorney billing hours. The patents themselves are written in a language that sounds like someone from the 18th century was dropped in and asked to explain how a silicon chip works. Only an expert can interpret the real intention and meaning of the claims. The process application process itself takes an extremely long time and the results are ultimately very dependent upon the individual reviewer in the patent office and the amount of time and treasure you are willing to invest in making your argument.
Once a patent is granted the process of defending it begins. The decision to pursue a patent infringement case is not easy for a small company. Large companies may simply assign some of their corporate attorneys and dispense with any business discussions at all, but for most companies the reality is a delicate dance to see if there are better options than a costly legal battle. What IP does the "offending" company have of interest? Will they counter-sue as a defensive measure? Is it possible that a partnership can be crafted that both parties will be happy with? Should we just ignore it and focus our limited resources on winning in the marketplace? If so, do will it be even harder to defend the patent in the future?
Although fraught with issues, the patent process does serve a very valuable purpose. The frustration involved in the patent application process pales in comparison to investing untold hours developing a unique product only to have a later follower blatantly steal the concept and profit from it. Without a method for protecting IP there is no incentive to make the initial investment in a new invention that may ultimately fail in the marketplace. It's kind of like the inherent flaw of socialism... why take all the risk and do all the work when you can let someone else and you share in the benefits?
I hate to lay out a list of challenges without offering some solutions, but this is a tough one. Here are some concepts off the top of my head:
1) Initiate a peer review process before patents are issued. Similar to the collaboration in any standards body, maybe a 30-day open comment period is appropriate. If the patents were effectively tagged and indexed you could easily subscribe to areas of interest and comment on patents that in your area. A ranking similar to those used in many social media sites could be used to score and prioritize comments from those in the industry from "yahoos".
2) Eliminate patent trolls. Trolls are the bane of any true inventor. If patents had some requirements around commercial viability or implementation periods, many legal trolls would be eliminated. If a commercially available offering has not come out of a patent within some period of time, or if it is not held by a company clearly in field related to the patent there could be some accelerated expiration clause.
