Abstract
The literature of software patents has thus far tried to directly address whether software patents increase innovation. The wholesale reform papers have persuaded neither the courts nor Congress, perhaps due to the unfortunate dearth of economic data. This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find. It proceeds under the first economic principles of the patent system to argue that there can be no justification for patenting software when the public has no knowledge of the patents' scope or technical disclosure. It concludes by observing that patent law already provides a mechanism for disclosing patents to the public, the marking requirement, and proposes putting teeth into it so that holders of software patents would be required to play by the same rules as holders of other kinds of patents.
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