The problem with the American patent system is not the Patent Trolls.

It's the Troll Patents.

Everybody hates Patent Trolls. Otherwise known as patent assertion entities, they typically make no products. Instead, they own and enforce patents through licenses and lawsuits. Since patent lawsuits are expensive and risky, patent trolls can negotiate big settlements from fat targets. And this stifles innovation and harms consumers. Critics as diverse as Google, the Electronic Frontier Foundation, President Obama, and Marc Maron all hate patent trolls for their lawsuit-heavy strategy.

But if we are going to take another crack at improving our patent system, we shouldn't hate the player, we should hate the game. Or, I suppose, in this metaphor, the ball - the patents themselves.

Take Personal Audio. Personal Audio owns patents related to the electronic transmission of audio in the form of playlists and episodes. Personal Audio argues that its patents - here are three of them - form the technological basis for podcasting. The company does not currently make anything, but in the last couple of years, it has sued Apple, Amazon, Samsung, XM Radio, and others, alleging that these companies have infringed its patents. Ironically for the company that claims to have given birth to podcasting, its enemies now say that Personal Audio's trolling will kill the form.

Personal Audio's founder, James Logan, took to Slashdot to answer questions in a bit of a PR counteroffensive. But his effort "in the lion's den" was quickly surpassed by less flattering portraits of IPNAV and Intellectual Ventures, two top patent assertion entities. And now the Obama Administration has announced that it will crack down on patent trolls.

This focus on the individual villainy of patent trolls is obscuring the real problem with the patent system - the Troll Patents being issued by the U.S. Patent and Trademark Office.

Take Personal Audio and James Logan again. One day in 1996 he presumably thought to himself, "I bet I could invent a new way to deliver audio digitally via episodes." And so he wrote down his plans and sent them to the Patent Office, whose examiners decided that yes, Logan has invented a new way to transmit audio.

The problem critics have isn't so much that they think Logan did not invent podcasting ("if you were the inventor of podcasting, you would have invented podcasting"), so much as they think that podcasting shouldn't be the type of thing that gets patent protection. The problem is that the Patent Office gave Personal Audio the patents in the first place. Patents are government-sanctioned monopolies, issued only "to promote the Progress of Science and useful Arts." Where would the science of podcasting be if they did not patent Logan's idea?

The Patent Office is too willing to issue Troll Patents for methods and for software. Certain types of inventions need patent protection to be profitable. Drug patents may be the result of decades of expensive research. Physical process patents may need whole factories built to derive profit. But certain software and method innovations do not need long periods of monopoly protection to return a profit to its inventors. These are, more often than not, Troll Patents.