Patents are an enormous problem for the software industry. Software development organizations can never be sure that the software they develop doesn't infringe on somebody else's patent, so the only defence against being sued for patent infringement is to build up an arsenal of your own patents on methods as trivial as you can get away with in the hope that if someone sues you can counter-sue them for infringing on your patents and end up cross licensing. This doesn't protect against patent trolls, though (who produce no products and therefore don't need to worry about infringing someone else's patents). Also, it favours large software development organizations over smaller ones - patents are very expensive to obtain.
The usual answer to this is that we should get rid of software patents altogether. Perhaps this will happen, if enough powerful companies are burnt by patent trolls. On the other hand, perhaps some software patents are actually useful for progress - perhaps there are areas of software development where patents make much more sense than copyright - where simply examining the end product would allow somebody to (without infringing copyright) copy the part that took hard work to discover (i.e. an idea rather than the implementation). Perhaps there are ideas could not have been had without the investment that a promise of patentability would bring. Perhaps the additional secrecy that would have to be put in place without patents would cripple the industry.
Here's a proposal for a different sort of patent reform, which aims to solve these problems:
First, get rid of all the patent examiners. They're doing a lousy job anyway, granting all sorts of patents on things which have been done before and which are perfectly obvious to a person skilled in the art. Many of these patents don't stand up in court, but it's still expensive to defend against attacks from bogus patents. Instead, the patenting process should be a simple rubber stamp - anyone can send in a description of their idea (preferably not written in patent-ese), have it published on the USPTO (or equivalent) website and hey presto, that concept is now patented.
Of course, that doesn't get rid of the problem of bogus patents - it just moves the workload from the patent office to the court, which seems like it would make things worse. So the next stage is to set up a special patent court. If A wants to sue B for infringing on A's patent, it all gets sorted out in this court. The court needs to find a person skilled in the art (PSITA) who is not affiliated with A or B, and also to determine if B referred to A's product or patent. If the patent is bogus, or if B is determined to have invented the same thing independently, then the patent is thrown out and A has to pay the costs of the entire proceeding. If the patent stands up and B is found to have based their product on A's product or patent, then B must suffer the usual consequences, including having to pay for the proceedings. So (assuming the system works justly) all B needs to do to say safe is not to read unexpired patents and not to refer to competitors products - there should be no cost to them for accidental infringement or bogus patents (which really amount to the same thing - if it's possible to accidentally infringe on a patent it's a bogus patent by definition).
The third element we need is a way for a B to be sure that the product they want to release doesn't infringe on any patents (or to find out which patents it does infringe on). In practice it isn't possible to avoid seeing all competing products, so this step is necessary. The costs of this step must be borne by B, since otherwise B could cost A a lot of money by frivolously requesting repeated patent checks. The benefit is that (assuming the report comes back clean) there is then no risk of B losing a patent court battle. This sounds like it would be a very expensive exercise since it's essentially the cost of a patent trial multiplied by the number of active patents - however, a properly indexed patent database should make it reasonable.
One other element I'd like to see is a "use or it lose it" rule for patents, like those for trademark infringement. If you hold a patent, become aware of someone infringing that patent, and not choose to sue them immediately, you lose that patent altogether. This avoids problems with "submarine" patents.
