Yet I haven't seen it in any of the proposals/orders coming about over the years mention this sort of feature. Is there something I'm missing?
A better approach would of course be that the PTO did not 9 out of 10 times create a patent that they later will find to be incorrectly issued. That the state has an 88% error rate when issuing 20 years patents should really not be allowed in 2013.
A judge also has the power to stop a patent from going to trial if some forms of invalidity can be shown, for example if the defense turns up prior art, or if turns out the inventors failed to file within one year of first publication or sale offer.
I completely agree that the primary problem is too many patents issued for trivial, obvious or not-new technology.
The data is PTO's own yearly statistics, and is under the heading of issued certificate of reexamination, and one need to compare the period of 2011/09/30 -> 2012/09/30 to get the latest data. A certificate is the concluded decision after all the appeals are done. The statistics cover all types of patents, and all types of industries. Statistics for specific markets (say software) doesn't seem to exist.
The reason I don't bring up unchallenged patents, is that they are of indeterminate quality. The market values them less, and they shares many of the attributes of untested code. It might be good, it might be bad, but until the code is actually run and tested, nothing much can be said. Discussing the quality of untested code seems to me at least as exercise in futility. If we were to try asses the average quality of developed code, would we include untested code too, and if so, how?
On the positive side, patents that are used by entities that try to extract money from patent licensing do tend to get their patent contested. So the patents that are challenged, are also the patents that are in-use at patent suits and patent agreements.
Is that what you are referring to? I don't see it saying 88%
Can you clarify or provide an alternate link?
It would be interesting to make a graph of the issued certificates, and see if for the last ~5 years, the error rate have been improving or worsening.