If the problem isn't about increasing costs for large players, then what about decreasing those for small players?
The basic problem is patent cases are inherently highly complex and specific to particulars and context, and the legal system is inherently inefficient and unpredictable.
These are worst case legal situations for good actors, but the best case terrain for bad actors that can carefully select the battles they want!
The only "simple" solution I can think of is, that a pattern of patent troll behavior is explicitly made illegal, and judgements and findings against trolls can puncture normal limited liability protections of corporations and business arrangements.
Taking out the serial trolls could then be made profitable and repeatable for legal entrepreneurs, who can assemble the deep pockets, and accept the large risks, required.
Having run businesses, been involved with patents and the courts, some things are blindingly obvious. So I'll step back a bit.
First, the courts are insanely overworked, so things take forever, lawsuits are insanely expensive for both sides. Most importantly, the entire court system is structured to be anti-scaleable.
Even attempting to use the courts as a scaling solution works against the entire design. If you are sued, you have lost the minute you get served - defendant always pays, and the entire effort and costs are on you, even if you win. The only solution would be to redesign the entire court system, and since the courts are constitutional creations, that means literally re-constituting the entire country (Constitutional Convention, dissolve the old constitution, start from scratch; I can hardly think of anything more dangerous in today's climate).
On the small business side, there is literally nothing that can be done.
Even take a thought experiment where someone magically funds a bottomless supply of money to defend patent cases — no small biz ever spends a penny on attorneys and court costs, and can always afford the best attorneys (nevermind that wrongly accused criminal defendants still need to get by with underpaid & overworked public defenders).
This is still a massive unbearable cost for the small or medium sized business, simply because of the huge of management distraction involved in running a lawsuit. In a lawsuit, it is NOT just "let the attorneys handle it". Every case is unique, and the attorneys are handling only the legal issues — they need to be educated from scratch on the issues in the case, and all that time and effort to educate the attorneys comes from the defendants. Then, the defendants must to sit for depositions (a whole day or more), which need extensive preparation, and be involved in preparing for trial, which just blows entire days or weeks out of the schedule, and so on...
So, even if the external costs are 100% paid, it is still enormously costly. Even if you also paid every exec and employee involved their entire fully loaded employment cost, it is STILL too costly, because of the opportunity cost. Those person-months of time are all taken from the company's productive work on their products.
Now, multiply this by dozens or hundreds of lawsuits on every patent, trying to simply sort out whether the patent is even valid. The overall cost to society would be insanely massive. Giving each patent examiner 10X the time (vs the simple doubling requested by the examiner's comment above), and doubling their pay would not even be a rounding error compared to the costs you would impose on every innovative business with such a court-based plan. And, the results would be worse.
Part of the reason I find this annoying is that I also used to start from a Libertarian perspective. It is very attractive. But every time I started to work through how a Libertarian solution would ACTUALLY work, I found that even the first-order consequences were ludicrous, and usually ludicrously expensive. I would up re-inventing the government structures that we already have. So, it is either naive, or a trope to sucker naive people into trying to tear down the institutions that society has already built. Of course these need to be improved, and they should be, but the L approach really doesn't begin to work.
If you are a genuine inventor, and have a truly novel, original, valuable invention, you want the patent to deployed and fully enforceable as rapidly and fully as possible. Waiting years for multiple cases to sift their way through the courts only allows others to infringe for those years. Even if you rightly collect judgements in the end, those are unlikely to make up for the market leadership opportunity cost you lost to the infringers.
If, OTOH, you are a small-medium business being sued for a bad patent, you also want it clearly defined that the patent is invalid, so you can move on. Waiting for multiple courts to decide only costs you more money, distraction, and market opportunity.
What is really good for everyone is a very serious, fully funded, fully staffed and highly competent National Patent Office, which can effectively and reliably determine patent-ability, and is widely respected for its expertise. That is best for everyone because there are clear boundaries. It would also mean far fewer patents because there are a LOT of junk patents out there.
