He addresses a number of your points, briefly in the article and more in-depth in his full paper, which is downloadable free of charge:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
To summarize poorly, he admits that there might be some selection bias in which patents are defended but generally finds that Patent Trolls are just about as effective (or ineffective) in court cases as the general patent-owner population. You suggest (and I agree!) that the courts and current patent systems are ill-equipped to handle software patents effectively, but his systematic look at the evidence, compared to the excellent anecdotal look TAL provided, suggests that for the largest, most systematic trolls, the patents asserted aren't much worse than non-troll patents.
I highly suggest the full-paper, or at least the final conclusions section.
If he can't get his point across using 887 words, then what is the point in reading him further? Does he provide charts and graphs?
Re:Patent Troll Myths
by prodigal_erik on Monday September 05, 2011 @08:06PM
(#2963654)
As I understand it, invalidating a patent is typically a Pyrrhic victory—you can't recover the money you spent on defense, even after demonstrating the plaintiff's willful abuse of USPTO's negligence. Which means you can't find a lawyer to defend you on contingency, so if your business can't sustain the full cost of the defense, you're just fucked.
Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid. Another 23 were held completely invalid, and the rest were partially valid.
I would assert that the number of patents found invalid is not a measure of "quality" in itself (if "quality" even exists in software patents). Lack of invalidation could just as much be a measure of the courts brokenness or defendants desire to settle or any number of things.
Just as much, the number of patents created by small operations is not a measure of their quality, validity or innovativeness.
One could look at the patents themselves and we've seen a number of egregious patents here. However, our "myth busting" patent-specializing law professor somehow does get around to that.