A lot of patent attorneys jaws will hit the floor if the Supreme Court in the eBay case overturns century-old case law precedent and clearly expressed historical Congressional intent dating back at least a half-century by ruling that patent trolls are less deserving of injunctions. Hopefully the ruling will pipe down those who keep making such a splash about patent trolls, but just as likely that the anti-patent crowd will instead add the Supreme Court to its patent bogeyman list.

"With more patents in the hands of small entrepreneurs, cross-licensing détentes are old hat, and patents have morphed into tools to extract licensing fees."

In fact, patent cross-licensing between companies continues to be business-as-usual, just as individual inventors garnering licensing fees is old hat. It's tidbits like this that illustrate Lorraine doesn't know what she's writing about.

"The Federal Circuit and its injunctions aren't the problem... [T]he disease: a plague of bad patents issued by an underfinanced and hidebound Patent and Trademark Office -- with the tech industry's help. Tech companies eager to stake a claim on a snippet of code or bit of technology... that's already in widespread use."

Yet eBay couldn't touch MercExchange's patents, and neither Microsoft nor the patent office down the Eolas patent, nor RIM the NTP patents. Even the patent office had to concoct absurd four- and five-way prior art combinations to smote NTP's IP.

But here, Lorraine misses the big point: the law gives patentees a one-year grace period. With software innovation particularly running fast and furious, that's a formula for generating junk patents.

"The IT industry complains that it's not so simple, that prior art in software is difficult to analyze or impossible to dig up."

Maybe Lorraine just chats with IT whiners. Patent Hawk digs out litigation-quality invalidating prior art time and again for IT clients. And it's a ignorant insult to suggest patent litigators are ill-equipped to analyze prior art, or even to find it. Clearly, Loraine hasn't been reading court rulings or patent weblogs, ready public sources that show how well prior art is being found and analyzed. And that's just the tip of the iceberg of prior art being dug up; take it from one who knows. But finding anticipatory prior art is less than half the battle - the lawyers have to get the story across to a trial jury ill-equipped to act as "one skilled in the art," capable of the requisite comprehension of technical details. That's one of major reasons a patent court circuit is a good idea.

The patent office hit a nadir of granting poorly researched patents in the mid-1990s, and the courts have witnessed some of that. Though hardly an ideal situation, the prior art search capabilities of the patent agency have improved as online databases make finding prior art much easier than ten, or even five, years ago.

"The vast majority of software patent applications cite no prior art."

That's an exaggeration, but patentability searches are often cursory. There is no legal obligation for an applicant to search for prior art, and it's hard to construct a fair requirement to do so - after all, that's the examiner's job. Lorraine's complaint on that score is both damning and meaningless.

Of course Ms. Woellert trots out anecdotal stories of a few bad patents. But the overall statistics show that most patent cases settle, and shabby patents seldom make it to the courthouse, because litigation costs are far too high to turn court dockets into patent dog tracks. Obviously bad patent litigation cases that do come up are readily dismissed.