Mark Lemley, the director of Stanford's Law, Science, and Technology program, took the opposing side, arguing today's situation is different from the past in type and scale. He contended that Khan omitted some key details and left out others that suggest there is a rise in patent suits and trolls no longer serve a useful function.
There may be a hundred or a thousand times more patents filed on smartphones than on the telegraph, he noted. "There is dramatic growth in patent litigation, and it correlates to a rise in patent grants," said Lemley.
Khan's paper showed a recent rise in the slope for growth of both patent grants and patent suits.
What's more, the patent office can no longer keep pace, he said. He noted Alexander Graham Bell was awarded some patents within three weeks, while today's average wait is three and a half years.
"By the time a patent issues in the software industry it is almost guaranteed to be obsolete -- that creates a fundamental problem that didn't exist in the 19th Century."
Trolls are not necessarily a problem, but may be a symptom of broader problems in the patent system, Lemley said. "The folks pushing for patent reform are Silicon Valley companies that own most of the patents and do most of the innovation.
"The right question to ask is whether the patent system is encouraging innovation."
In an open discussion, others took Lemley's side. "In Israel they all patent in the US, and it's become an enormous barrier -- this should worry us," said Manuel Trajtenberg, an economist who chairs the Planning and Budgeting Committee of Israel's Council for Higher Education.
"Trolls focus on companies who don't have a budget for litigation, so these small companies settle, funding litigation against bigger companies," said Eleanor Lacey, general counsel at SurveyMonkey. "There are patents being asserted where you cannot tell what is being claimed -- they just want to shake some money out of the tree.
"Companies are having trouble getting engineers to file patents because they don't want to be involved in all this."
Next page: Major products attract suits