Evidence of Poor Patent Quality

In all the current legislative talk of patent reform, we see no one addressing what must be one of the biggest problem with our system: patent quality. As one slashdot user put it,

"Obviousness" is such a tricky, subjective criteria that the USPTO seems to have given up on it. Or, at the least, they've combined it with the "prior art" criteria, so that anything that isn't already in the patent database is both without prior art and non-obvious.

The other test for obviousness (the one that is somewhat sane) is apparently left for the courts to decide after the patent is granted.

You might also be interested to know that our patent system originated in 15th century England, and had nothing to do with novelty, non-obviousness, or prior art and everything to do with exclusive, state-sponsored monopoly.

The striking thing here is that our current patent system is starting to look a lot like the old 15th century English one, where "low quality" patents are granted willy-nilly, punishing the general public by levying a sort of tax on everyone except the owner of the patent. In other words, it seems more and more to have everything to do with exclusive, state-sponsored monopoly and nothing to do with protecting innovation and inventors.

Now, this may be a valid perspective, but where is the evidence to back it up? How about BustPatent's list of invalidated software patents? This is certainly only a sampling, but look at it this way -- for each of these patents, the applicant likely spent $10K-$20K fighting to get it granted. The USPTO likely spent 2 years examining the patent before issuing it. And, to get it invalidated, either the USPTO had to spend more time re-examining its mistake, or (more likely) a costly court battle ensued between the holder and an innocent "infringer."

Now multiply this for all the invalid software patents that aren't listed.

Now multiply by all the other fields for which patents are issued (the linked list is for software patents only).

Now add the cost of all "infringers" who rolled over at the first cease-and-desist letter because they knew they didn't have the resources to contest a patent, even if they thought they could eventually prevail. How much money didn't these guys make, that they should have? How much time was spent inventing, just to be stopped by an unjust claim?

What is the total cost? I shudder to imagine.