A perspective on software patents in a developing nation
23/10/2008

The software patent debate deals with the extent to which it should be possible to patent software and computer-implemented inventions.

This debate is raging across the globe: in developed nations such as the US and the UK as well as in developing nations such as South Africa. The challenges faced by each individual country may well dictate public policy regarding the patentability of software in that country.
Current Position in South Africa
The South African Patents Act of 1978 (‘”our Act”) currently excludes a program for a computer, as such, from the definition of an invention. According to our Act, this category is excluded from patentability “only to the extent to which a patent or an application for a patent relates to that thing as such”. It would therefore seem that an apparatus or a system for using software is not excluded from patentability by our Act. It can therefore be argued that that a system or an apparatus used in a software related invention does not necessarily contravene this software exclusion.

There has, however, not been any litigation on this specific section of the South African Patents Act to date, and there is therefore no clear indication of the interpretation that our Courts would lend to this section of the Patents Act. The boundaries of patentability relating to computer software are still to be determined in South Africa. Substantial similarities do however exist between our Patents Act and the British Patents Act and our courts may well turn to the decisions of British courts for guidance on software-related matters.
Current Position in the UK
The British Patents Act excludes inventions that reside in programs for computers “as such”. The “as such” clause is intended to limit the extent of the exclusion: it is designed to deny patent protection for inventions such as the mere automation of a conventional arithmetic method, which you one perform in one’s head, by means of a computer program. If the invention has a ”technical effect”, or makes a technical contribution beyond that provided by a computer program configured with conventional functionality, then it should not be excluded from patentability.

A judgment was recently issued by the UK Patent Courts which provides that the new features of the computer program and the technical effects of these new features should form the basis of the patentability assessment. Claims to computer programs are not rejected outright, rather the technical effect or contribution, provided by the computer program, forms the basis of any assessment of whether or not the invention is excluded from patent protection.
Effect Software Patents may have on South Africa
South Africa, as a developing nation, is in a substantially different position from that of a developed country such as the United Kingdom. It is a common argument that established multinational software companies may register their extensive software patent portfolios in developing nations, such as South Africa, thereby potentially destroying any competition from local software products. The flip side of the coin, however, is that these controversial software patents may well be the foundation on which local software companies can enter the global marketplace and compete with these established multinational companies on their own turf. A patent may well provide the traction to a start-up company to build their business.

In addition, the innovation of new technology may be hampered and even crippled if the return on investment needed in the development of new software is not borne in mind. Software patents provide an incentive to large software developing companies to invest time and money into the furthering of their software products for the achievement of competitive benefit. This is especially true where the software is expensive to develop and easy to copy. A large number of potentially beneficial software products may fail to be developed as a result of strict software patent constraints and the resultant lack of incentive for large software developing companies.

Therefore, in determining the extent and applicability of intellectual property rights relating to software products in South Africa, thought should be had to the unique position in which South Africa finds itself.

Author: Elaine de Beer