I would actually be interested in taking this exchange to email. You clearly are informed on a topic that I don't understand as well as I'd like. I may not wind up agreeing with you, but I would like to challenge what I think.

First between specific decisions handed down, the fact that a chief justice had to step down due to ethics complaints, and the complaints of Supreme Court justices, I am still strongly inclined to the belief that there is something wrong with that court. There are real challenges in addition, but they are "in addition".

Second I completely agree that there are problems with international-level consensus. The biggest of which is that lobbying organizations have proven adept at using international negotiations as a ratchet to get everyone to agree to stronger rules, that then everyone is bound to because it is an international agreement. The classic example of which is the way that Disney and others have used international treaties to repeatedly increase the length and strength of copyright rules. But that said, my impression is that the US is pushing strong patent regimes on other countries, and not vice versa.

Next, you're putting words into my mouth that I didn't say. I didn't say that there should be no software patents. I said that most software patents should be considered invalid, including all that have my name on them. Those are very different statements, and there is no direct path from what I actually said to what you concluded about me. Also note that my statement is consistent with Paul Graham's essay that I linked to which said, among other things, that if you're against software patents, you should be against all patents.

Now let's move to what I actually think.

The core of my frustration is a combination of the following things. The first is that the non-obvious bar to patents is set way too low. The second is that our legal regime makes patent trolling far too easy and profitable, to the detriment of those producing real innovations. The third is that our system does not create incentives that promote the progress we are aiming for.

We can debate in an ideal world what combination of things would be used to solve this problem. However in our world they are being solved - badly - in the courts.

Still in an ideal world, how would I want my concerns addressed?

First, whether an improvement is obvious. Today we frequently get into dueling opinions of experts. Which one do we trust? Formulaic rules cannot truly grasp what is or is not obvious. And who it should be obvious to.

I would like to see non-obviousness become more of an affirmative defense. If I thought of X and never heard of you, never saw your product, and you never publicized your invention, that is direct evidence that your invention was, in fact, obvious to me. Which means that your patent should be invalid. Whether or not there was prior art. Your counter to this argument should be evidence that you publicized widely, your invention was widely distributed, or I did, in fact, have personal reason to know of your discovery.

Related, I would love it if the patent holder had to demonstrate non obviousness by demonstrating the existence of multiple people and organizations with the knowledge and incentives to have thought of it who failed to do so over a period of several years. It is frequently the case that a new technology creates a rush of patents on everything to do with that technology. Everything becomes "non obvious because nobody did it yet". I think it should be the opposite. Rather than a patent land grab, raise the barrier to patentability until the passage of time demonstrates that remaining ideas are actually not obvious.

That alone should eliminate many of the most problematic software patents. And it is particularly a problem in software because software constantly has of new technologies coming out that nobody has thought about, and therefore it is hard to tell what is or is not obvious. (Leading to dueling experts debating obviousness.)

Second, patent trolling. Alice improves things by getting rid of one class of bad patents. But there are a lot of classes of bad patents. That decision is chipping around the edges without trying to solve the problem. Instead I would like to see decisions that allow evidence of patent trolling behavior to be used as a reason to raise the bar against the would be patent enforcer. I don't so much have a concrete solution as the hope that enabling some sort of "unclean hands" argument against patent trolls would represent a significant improvement.

And third, about the incentives. The legislation said nothing about it, but the Constitution is clear. The purpose of patent law is to encourage progress. If the patent holder cannot demonstrate that they are engaged in activities that encourage progress, activities such as commercializing their invention or publicizing their discovery, then the patent should be invalidated. Congress should have no right to grant a temporary monopoly if you are not progressing science or the useful arts.

I realize that this may seem like an extreme position. But I also truly believe that it would be a significant improvement.