The critics are right. The answer to the smartphone patent thicket is not a patent pool.
Given that we are unlikely to get rid of software patents, then, what can we do?
I would suggest one thing we can do is understand what patents are for, and bring our policy back into line with that idea.
It's one of the powers given Congress, under Article I, Section 8 of the U.S. Constitution:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Most critics focus on the second part of that, the idea that patents and copyrights should be secured for limited times, and that Mickey Mouse is well past his sell-by date. (I don't think throwing money on Walt Disney's grave at this point will create anything.)
I think it's time we focused on the first part, the purpose of patents and copyrights, which is "to promote the progress of science and useful arts." In other words, to spur innovation.
In the medical field, which I also cover for ZDNet, patents work pretty well. Companies patent chemical compounds, or they patent specific devices. They publish the designs, so other inventors can see what has been done and try to do better. If they do better, they get their own patent.
In other words, patents are meant to produce better mousetraps. You patent a specific design. You don't patent the idea of killing mice. (Wikipedia has a nice collection of mousetraps. This is one.)
Software patent examiners seem to forget this. Thus Microsoft claims to own the whole field of syncing e-mail between a cloud and a device. NTP claims to own the whole idea of wireless e-mail.
How does this spur innovation? It doesn't. You're patenting the idea of killing mice. We can't create a better mousetrap until your patent expires, and then we're stuck with the first new patent to hit the door.
In a sane world of software patents, you patent your implementation of wireless e-mail, or e-mail sync. You publish your code and if someone goes at it in the same way, they know they're infringing. The code is the design, and if you aren't willing to publish that through the patent office it should be no patent for you.
Then, everyone else gets to look at the code, they know where the possible infringement is, and they can invent their way around it. They can get their own patent. In other words, why not have two or four or 10 patents for various wireless e-mail implementations? Let 1,000 patents bloom.
That's the way it works in medicine. You patent a specific stent, not the idea of using a stent to hold a blood vessel open. You patent a particular compound against cholesterol, not the whole concept of statins.
It doesn't take a new law or international treaty to get this right. Just a change in policy at the patent office, and a head of that patent office with the courage and intelligence to stand up for this change before Congress and the industry.
And if said official is interested, I am not claiming a patent on this analogy.