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.

It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. US Supreme Court, Atlantic Works vs. Brady.

Since it became widespread and commercially valuable, software has been remarkably difficult to classify within a specific category of intellectual property protection. This is because software's characteristics are unique among protected intellectual creations, presenting particular difficulties for those drawing analogies with existing legal subjects. Commentators have sought to classify it under copyright, patents, both, trade secrets or even as a sui generis software right. It is indicative of the complexity of the debate and the problems in defining the protection of software that, while this issue has been the subject of discussion for more than 20 years, recent developments suggest that there is still no solution in sight.

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