Bruce Sewell, Intel's general counsel, has a great op-ed piece in Thursday's Wall Street Journal [Subscription req'd]. This is just one of those things that everyone seems to agree upon, but no one (except perhaps IBM) will unilaterally act upon.
Sewell elucidates the problem, and proposes support for US legislation that would go a long way toward fixing it:
Unfortunately, under current law, parties that want to innovate in areas covered by questionable patents have only two options, both of them bad: an ineffective, rarely used re-examination process, or litigation -- the average cost of which is, by some estimates, $4.5 million. This impedes innovation, as the FTC noted: "One firm's questionable patent may lead its competitor to forgo R&D in the areas that the patent improperly covers."
The Patent Reform Act [of 2007] would allow patents already issued to be reviewed, either immediately after the patent is granted or later, if a party can establish that significant economic harm may arise from the assertion of the patent. This new procedure would help weed out bad patents and cut down on litigation as a first resort, as it would allow for meaningful challenges to bad patents in the patent office, which is best situated to evaluate the claims. While some fear this will give patent infringers a tool to challenge patents they are infringing, the Patent Reform Act authorizes the director of the patent office to develop and enforce rules to prevent such abuse.
Hopefully public posturing on this bill will be met with private petitions in its favor. We need patent reform. Everyone needs it.