[logicallee]

But that's completely false isn't it, just like saying that copyright is nothing until it's tested in court?

There is absolutely a difference between a copyrighted image and a free to use image, even if I know the copyright holder is in no position to sue me. Likewise, there is a clear difference between someone's protected invention (if they have passed a very high bar over prior art, obviousness, etc) and the way the problem is always and usually solved. (If at all.)

I can respect a real patent just as easily as I can respect a copyright, and so it is hardly fair to say that a patent is nothing until it is tested in court.

[jp555]

It's not like copyright. Copyright is automatic, a patent requires expensive application, and even then it's only as good as it works in court. This is why the patent trolls choose venues for their actions that have a historical bias in their favour.

A patent by itself is not a very big moat to protect against competition; if you don't believe me just ask Samsung. The only way to actually turn a patent into force is to spend a gargantuan among of money on lawyers. I just think 99% of time that capital is better spent in other areas in the business. Spend it to get better at "running upstairs" - http://www.paulgraham.com/wealth.html for example.

Patents can be valuable as part of a business's competitive advantage. However, recently the damage caused by trolls using this as their only competitive advantage has made patent's negatives far outweigh their positives to the markets at large.

[afarrell]

But we don't have a system in place that a lay person can use to distinguish between legitimate patents and illigitimate ones, do we?

[logicallee]

Lay people can't infringe a patent even if you hand them the patent and ask them to create an infringement. Definition of lay. (i.e. if you can create something in the domain you are not lay.)

On the other hand, actual practitioners can use their judgment. The standard is supposed to be non-obvious to someone skilled in the art. For most patents, this is going to be fairly simple, just as most cases where we respect copyright are fairly simple.

[afarrell]

Er, I meant laypeople relative to the field of Patent Law, not laypeople relative to the field of software engineering.