Marking the Patent Beast?

In "Marking the Software Patent Beast, Stanford University law student Stephen Lindholm argues that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find. The first economic principles of the patent system provide that there can be no justification for patenting software when the public has no knowledge of the patents' scope or technical disclosure. It concludes with a proposal to put teeth into the patent marking requirement "so that holders of software patents would be required to play by the same rules as holders of other kinds of patents:

Long ago inventors would be criminally punished for failing to mark their products, but then the law was changed to couple the punishment (no retrospective damages)with patent law. It seems that a more severe punishment is necessary to ensure that software products continue to be marked. This proposal is that patent holders be permanently barred from enforcing patents on products not marked. Whether this proposal is limited to software patents or not is not relevant to this paper.

A milder proposal is that damages would be disallowed until the products are marked, regardless of notice. In practical terms it might amount to the same thing. Major computer patent portfolios are so large that companies don’t know what they own, and it seems unlikely that any large-scale marking effort would take place given the expense and the need for near-total compliance among the companies’ own products as well as those of licensees. It seems more likely that marking efforts would focus on the most valuable patents, having already been identified for licensing purposes.

Hey Stephen, why not just go hog wild and require software developers to monitor new patent publications? I do it for my clients in industries where patent marking is the norm.