Software Patents in South Africa
Traditional protection of software / computer programs through the provisions in the South African Copyright Act by means of Copyright residing in the source code, Copyright residing in the on-screen layout, and Copyright residing in any characters or animation forming part of the program. A need has arisen to protect the underlying principle of operation of the computer software, rather than the physical representation thereof as set out above. Inventors need be able to protect software related inventions in terms of the Patents Act.
At present, the South African Patents Act excludes a program for a computer, as such, from the definition of an invention. However, there has not been any litigation in South Africa on the specific section in the South African Patents Act dealing with the exclusion of software from patentability. There is therefore no clear indication of the interpretation that the courts would lend to this section of the Patents Act.
While South African courts have not yet considered the patentability of software, this field of law is quite well developed in Europe. The European Patent Office has issued guidelines which state that if a computer program has a technical character, then it is not excluded from patentability. However, if a computer program is capable of bringing about a technical effect going beyond these normal physical effects, it is not excluded from patentability, irrespective of whether it is claimed by itself or as a record on a recording medium or “carrier”. As with all other inventions, computer programs must be new, inventive and have a use or application in trade, industry or agriculture. To overcome objections as to whether the program or apparatus involves an inventive step, it may be helpful to determine what the technical problem is which has been solved through use of the program.
The South African Patent Office is a so-called non-examining patent office. This means that patent applications lodged at the South African Patent Office are not subject to examination on the patentability of the inventions disclosed in the patent application. Patent applications are only examined on the formalities. It is therefore unlikely that the Registrar of Patents will not allow a patent application because it contains claims to a computer program. More likely, South African patents may be challenged in court by third parties who, by their own volition, wish to attack the validity of any patent granted by the South African Patent Office. Your patent application will in all likelihood not be rejected by the South African Patent Office on the grounds of non-patentability. However, this does not mean that a patent granted for your invention is valid.
For more information, please view our Software Patents page here.