They have more than enough money to hire patent lawyers though, who are very expensive, which means that they can definitely hire a college code to write some code, toss it into a useless Android market app, sell a few copies to their friends and tell the court "see? We are too a real business using this important patented technique in this thing that we're selling".

If your plan to eliminate patent trolls can be easily thwarted by spending a few grand hiring an intern, it is not a really good plan.

Judges aren't stupid. If the language specifies some honest attempt to use the patent in the marketplace, I could see judges making a judgement on whether or not the example in front of them qualifies. Unlike computer systems, subjectivity and interpretation is a part of the law.

I don't see how a judge could distinguish "my startup is failing to gain traction" from "my company's product is a sham designed to bypass anti-patent-troll regulation".

If we can tell the difference, a judge can.

Also, as noted elsewhere in the thread, trademarks do behave like this: use 'em or lose 'em. They could be similarly gamed, yet it works in practice.

Eh, maybe. I know a guy who was a patent troll. He did everything on contingency. (And he made tens of millions doing it.)