There are a host of arguments as to why it can't happen, of course.
For the first: the idea of a patent is to grant a monopoly. That should be on a "use it or lose it" basis -- if you're not selling a product (or taking demonstrable efforts to do so) within some t time of having submitted (or been awarded) a patent grant, you lose the exclusive use right. Afterward, you can get some mechanical royalty, perhaps. That still raises issues in the place of software where there are potentially _thousands_ of infringements in a single product. And moreso for free software: is the mechanical royalty some percentage of purchase price (a competitor could sink your market by dumping), is it a fixed per-unit fee (and how is that determined, assessed, and collected)?
Confounding that is the point mentioned in the story: the value of patents is their aggregated use. It's like the Lilliputians tying down Gulliver. Each thread on its own is tiny, but enough of them are sufficient to be immobilizing.
The real problem is that the patent office can literally create property rights out of thin air / whole cloth. The mandate of several recent directors of the US Patent Office has been to "increase production" -- to grant more patents. If the NPR story is accurate (and reading patents is an obscure art, which itself may invalidate the directive of "obvious to one of ordinary skill in the art") and Crawford's '5771354 patent was one of 5000 identical inventions issued at the time, then the patent office very simply isn't doing what it's supposed to do.
The problem (wait, have I used that tuple before in this response) is that there's no one party authorized and/or able to bring about that reform. I've watched the spectre of software patents emerge and grow over the industry for nearly two decades. Richard Stallman's been railing against this since the early 1990s (the man is seriously prescient). Numerous tech companies, including Red Hat and Oracle, are or were part of an anti-patent league. For a time, Microsoft fared very poorly in patent fights (it had a small portfolio of its ownn, hence, a weak defensive position). It's hardly surprising that Myrvold spun out and started IV. So we're kind of stuck. Unless Congress can get convinced to take action.
Honestly, if the patent office would just do their job and not grant bogus patents based on obvious inventions or inventions with prior art, that would probably be enough.
Software patents aren't the problem, bad software patents are the problem.
The job of the patent office is impossible in the field of software patents.
It is not realistic to expect anyone to judge novelty and non-obviousness in a field this wide and active. Imagine trying to evaluate mechanical engineering patent applications if millions of people carried machine shops around in their backpacks.
The only solution is to end software patents. Obama could do this today by directing the patent office to respect the Supreme Court's Flook decision, which they reiterated as good precedent in Diehr and in Bilski.
The non-obviousness part absolutely requires more domain expertise than I expect a lot of patent clerks bring, but checking for prior art seems like something that could be found via search or crowdsourcing.
Imagine if there were a public review step to granting patents, where the broader community could provide examples of prior art and debate the non-obviousness of it.
There are lot of additional problems though... the way the Patent Office washes their hands and leaves it up to the courts to sort things out etc.
I personally think ALL software patents should be abolished completely. In absence of that, NPE's "non-practicing entities" should not be allowed to hold patents. You need to prove that you are using it (in commerce) to keep the patent. And you should not be able to sell a patent unless it is sold with an existing revenue producing business.
The US system has turned into a joke.
Mpeg,h264 series of patents. I'm not sure any one would invest the same effort in these particular domains if they knew every one can copy them (though current crop of internet companies like google have an incentive to do it).
That patent office really doesn't have enough resources to do their job. Congress determines their budget and the fees they charge, and actually hasn't even seen fit to allow them to keep all the money they collect in fees.
In the 1980s (IIRC) this has previously resulted in long delays before patents were issued, but then Congress ordered to USPTO to clear its backlog, which means they now _have_ to grant most patents quickly, because if they don't the applicant will just make a few small changes and send the patent in again, but if they grant the patent its out of their hair.
15 years in technology is a lifetime. Enforcing a monopoly for so long ensures that there will be no real innovation/progress in that area. How can we, as a society, afford to be held back like this?
In so many areas progress would happen much faster if not hindered by legal threat.
That would also require the patent office to grant patents in well less than a year. It wouldn't help the little guys too much if you found out you were granted the patent 6 months or more after its expired.
Crazier idea - what if the patent pool (for some domain maybe?) was fixed? (ie. there can only exist 10k patents?)
Then the cost of patent search isn't ever increasing as long as rate of patenting is higher than rate of expiry.
And possible it could provide a mechanism for removing frivolous patents (like - you could buy a patent 'slot' off an existing holder - so you'd be incentivised to find the most stupid patent so you could offer them the least cash upfront, as they'd not be holding out for licensing profits).
If you come up with something worth patenting, you get a year lead on competitors. That's it.