There are other alternatives.

Have you ever wondered why bands are allowed to "cover" other bands music without any kind of prior permission? It is because the US Congress wrote something called a compulsory license into the copyright law. Music was thought too important to our culture to allow one person to have control over a new song.

I say it is time we brought the idea of a compulsory license to patents.

It's definitely the case that Congress should take action on non-practicing entities being able to put up a tollbooth on others efforts; there is no way that qualifies as promoting the useful arts and sciences.

I'm of the opinion that a patent that has not been reduced to practice should be regarded as ineligible for any enforcement action. If you can't make it work, you should not be able to tax the people who did make it happen. And you definitely should not be able to prevent certain technological developments using the legal system just to protect your existing business.

That is definitely a good idea, but what about the patents that are so blatantly vague or obvious, that many people are unknowingly violating them. It seems it's easier to prove non-infringement rather than prior art with most software patents.

The patent grant puts the burden of proof on the alleged infringer, on the theory that a granted patent has been pre-vetted for all the right criteria. But when I look at patent litigation, it seems (and perhaps this is a selection bias problem) that in most cases, about 90% of the patent claims get immediately thrown out. Doesn't it seem that the presumption that the patent grant is a strong enough process to force the burden of proof onto the infringer is just a social mistake? If the burden of proof shifted to the patent holder, it would totally change patent litigation, while maintaining all the abilities we applaud about the patent system -- the ability of a patent holder to sue an infringer who stole their idea, and get compensated.

Patent claims get thrown out because that's how patents are designed. The idea is to break your invention down into an onion of claim layers so that when it comes to court, if a claim is thrown out as being partially or totally invalid, it's just like peeling as small a layer off the onion as possible. The point is that you can't be sure exactly where the court are going to stop peeling, but by breaking it down into layers you can be more sure that there'll be something useful left when they do, and you minimise the risk of their going too far. I don't think that strategy is dependent on which direction the burden of proof lies.

Could you imagine having to pay a compulsory license to use something like Amazon's patented one-click ordering? There's nothing so horribly wrong with the patent model; there's something wrong with the system that decides one-click is worthy of patent protection.

You would not be required but would have the privilege of licensing Amazon's patent. As it is now Amazon can prevent anyone from duplicating there patent for 20 years.

The US constitution section is much better than the closest bit of the EU equivalent (Charter of Fundamental Rights of the European Union). It just say (Article 17.2): "Intellectual property shall be protected.".

No limits, no greater good…