[citation][nom]kentlowt[/nom]Although the patent system needs some fixing. What is broken here is a court system that alows such frivilous suits to happen in the first place.[/citation]The US patent system needs a lot of fixing, but it doesn't appear to be a design flaw so much as an implementation flaw.
However, you point about the legal system being a big part of the problem is right on target. With major criminal cases, we have the Grand Jury acting as guardians/gatekeepers. The prosecutors must convince the Grand Jury that there is sufficient evidence to charge a suspect before they will issue an indictment. However, with civil cases, we have no such gatekeeper, virtually anyone can file a civil case against another "person" (which includes corporations) for any perceived grievance. The judge does act as a type of gatekeeper in the discovery phase and preliminary hearings and can dismiss the case if there is no evidence to support the claim, but even the discovery and preliminary hearings can be expensive and time consuming. The plaintiff should have to show evidence of substantial harm, or at least show that it's likely that the discovery phase may produce evidence of substantial harm, before the suit is allowed to proceed.
The "show that it's likely ..." clause can be a slippery slope, it should not be used to allow "fishing expeditions", but the defendants shouldn't be automatically protected just because they've managed to keep the evidence out of the hands of the plaintiffs.
Who should be the gatekeepers? A judge? The plaintiff's lawyers? A jury? Any could work, but I suspect that if the plaintiff's lawyers could be, and in fact were, held accountable for the filing costs and reasonable defense costs in the event that the judge dismissed a case (for lack of evidence of harm, lack of standing, etc.), then the lawyers could consider the merits of cases more carefully before filing them. More cases would probably be resolved in arbitration if there were a higher "bar" to filing a civil suit. I suspect that would be the most cost effective way to put some control back in the system. Some lawyers would object to that system, but most of the ones I know would actually support and welcome such a system.