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Google's Patent Lawyer On Why the Patent System Is Broken
The San Francisco Chronicle features an interview with Google's patent counsel, Tim Porter, who argues that "... what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax. Things that seemed obvious made it through the office until 2007, when the Supreme Court finally said that the patent examiners could use common sense. Patents were written in a way that was vague and overly broad. (Companies are) trying to claim something that's really an idea (which isn't patentable). There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don't even understand. They're being used to hinder innovation or skim revenue off the top of a successful product." Porter is speaking in particular about the snarls that have faced (and still face) Android, based on Microsoft patents; he blames some of the mess on a patent regime where "you don't know what patents cover until courts declare that in litigation. What that means is people have to make decisions about whether to fight or whether to reach agreements."
The issuance of patents is *still* bad, it wasn't just some period in the past.
The problem stems from the core software patent problem, trade secrets work so well in software's case that no patent examiner can be aware of the body of prior art that exists. Likewise he can't know if it's an invention, or just an incremental change from what already exists.
And he may be fooled that the patent office has changed its spots, it hasn't. It still defaults to issuing patents when in doubt.
software patents are written by lawyers in a language that software engineers don't even understand.
That's been true across many industries, at least since the 1970s (which is as far back as I ever researched prior art...)
The real indicator of what's broken in the patent system can be read in the patent numbers themselves... in 1992 we were at 5 million and something, since the start of the United States Patent Office, now we're roughly double that number?!
Sorry, everything useful hasn't already been invented, but something is just out of synch. I think an ex-CEO of mine (ex high school football quarterback too) summed up the problem in his own words: "Our competitors were granted 62 patents last year, while we got three, can anybody tell me what that means?" I'm told there was stunned silence in the boardroom. "It means that WE'RE 59 BEHIND, now let's get going!" Patents have been turned into fuel for lawsuits, and they're reaching a scale where even a crappy little $100M/year company can hire a small army of patent attorneys to stock their powder magazine.
The system you describe is utterly ridiculous. It requires that anyone creating a new product broadcast detailed information to their competitors, while also requiring patent holders to maintain a constant vigil where they have to read the perhaps 10's of thousands of posts day to see if anything from there portfolio is being infringed. Do you realize the manpower that would take? For a company with a large number of patents they would require dozens or even hundreds of reviewers, each of which would have to have sufficient education to have the entire portfolio memorized, while also understanding the detailed technical specifications of myriad products.
It would be far easier to simply modify the patent system so that obviousness and prior art is given much more weight patent examiners.