In some ways, the high-tech industry has itself to blame for its own patent-related ills. Opperman points to the "proliferation of patents" and the ease with which big players buy and sell them. In that sense, he says, patents have become "commodities" for those who can afford them. "This commoditization has definitely driven down the quality of patents and [caused] their proliferation. So if you'd like to fix the patent system, make our user fees equivalent to those in Europe and use those fees to pay examiners more," Opperman says.
Outside the AIA, another step is to tighten existing overly broad patents, as the EFF attempts to do in its patent-busting project, intended to help narrow or defeat what it sees as overly broad patents, including one-click online shopping, pop-up windows, framed browsing and others. As part of the project, the EFF also hopes to help document the harm that these "illegitimate" patents cause to both the technology industry and to the public at large.
Pessimistic that Congress will make significant reforms to the patent biz, the tech industry is largely left to self-police, says the EFF's Samuels. Twitter this year announced what it calls the Innovator's Patent Agreement, designed to let engineers ensure their patents aren't used for offensive litigation. Of course, there is nothing to stop another company from buying an engineer out of that contract.
"It's becoming self-help-oriented," said EFF's Samuels. But in the end, that won't be enough. "In order to fix the system, we need more than self-help answers. We need action from policy makers to make it harder for [litigious patent owners to] threaten those who are innovating in America and slow that innovation."
That's not going to happen anytime soon. "It's unlikely that the optimal design of the U.S. patent system will be the one that best serves the needs of all its largest customers," says attorney Ewing, noting that the patent system should serve the overall needs of the U.S. economy as a whole and the technology industry, one of its major drivers, in particular.
Not everyone believes the current system can be fixed well, quickly or even at all. Billionaire entrepreneur Mark Cuban is an investor in Vringo -- a small company that has sued Google for patent infringement -- and he is a vocal opponent of the way the patent system operates in the U.S. "Congress is full of lawyers. Lawyers make money from the patent system. There is no one representing the silent majority," he says.