This was not what happened with the TiVo patent. TiVo not only had the patent, they also were one of the two pioneers (with ReplayTV) that implemented and established the DVR market. Which was why when E* was found to have infringed and ordered to disable, that was a fair deal.

But even in such solid cases, the eventual outcomes are never certain. Now, not only has E* designed around the patent, but managed to prove that even the TiVo patent might not be the first of its kind that deserved a patent, at least with respect to the two software claims.

Part of the cost of doing business. If the court orders patent trolls like Acacia to pay up every time they lose, no legit inventors will be able to sue anyone because they are often small guys, without resources to sue large companies. Then all the large companies will be free to copy any inventions without compensating the inventors. The end result will be no small inventors will be motivated to invent, the society as a whole will suffer.

To that end, even asking the PTO to do a more thorough job in weeding out bad patent applications is too much a burden on the PTO and the small inventors. It will cost too much for anyone to get a patent, most small inventors will just give up and stop inventing/seeking patents. Without patent publications, no one can learn from any new inventions disclosed by those patents.

It is a balancing act.