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".
