Abstract
One hundred thousand software patents are in force today, yet nobody really knows what is covered or by whom. But patents on computer software are so obscure to be effectively secret - they are abstrusely written, not indexed in any meaningful way, and their scope is hard to predict. Because the economic principles supporting the American patent system depend on patents being publicly known, this obscurity undermines the economic justification for software patents.A solution to the software patent obscurity problem may lie in the disused “marking requirement.” In theory, patent owners have a duty to label their products with the relevant patent numbers. The duty to mark is justified by patent owners being best situated to determine the scope of their patents. Competitors and the public can determine which patents cover what by inspecting marked goods.
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