EFF: Open Letter to House Judiciary - Investigate Patent Trolls

I have not seen any definition of a patent troll in this proposed legislation. Apparently, troll is synonymous with loser in patent litigation. The unintended consequences will likely be severe.

Let's say that I have some awesome product that implements one of my patents. I am making real money off the product, but it's a small company, so profits are relatively small -- let's suppose $100,000 per year. Some giant company -- let's suppose Microsoft -- makes a product that infringes my patent and destroys my business. I have a bona fide complaint against Microsoft, and it needs to be resolved through the court system or a private settlement.

Yet, I have a significant disincentive to sue Microsoft. Not only could I be out my own legal expenses, which I can rationally limit since I control the legal team, but I could be on the hook for Microsoft's *reasonable* (emphasis) legal expenses. That can still run into the millions of dollars. Suddenly, it's unfeasible to bring a suit against a large company.

In this instance, I'm not really acting as a troll, but I am just as disincentivized as trolly-mctroll-corp.

That's my entire problem with this approach. The pendellum swings both ways. Any ligitant is disincentivized from filing a suit.
I can certainly understand that some would think that this is a good thing, and I agree to some extent: Fewer lawsuits (and patents) would be a good thing. But for every trollish suit (or perhaps for every 10) there will be legitimate suits that are not pursued. (Or, alternatively, the entire affair is toothless, and neither trolls nor legitimate patent holders are dissuaded from filing.)

I don't want to fix the litigation aspect of patent law, except perhaps, to make patent review during litigation more adversarial. I want
1) Significantly tighter restrictions on patent eligibility.
2) Substantially smaller patent term perhaps as low as three years.
3) An outright adversarial filing and review process by USPTO that exists entirely outside the court system. (With the stated goal that reviews should not be wrapped in court procedure to minimize cost.)

I believe that reform expends political capital. Once something is reformed, people generally believe that item is fixed and move on to something else. Look at major legislative issues. We don't typically make drastic alterations repeatedly over a short period. There's almost a sense that we can only reform some systems once a decade or generation.

I think that SHIELD has unintended consequences that will not make the system substantially better, and that "we" will exhaust all of the political capital for patent reform, which will delay more substantive reform later.