Alistair Otter’s article of last week suggests that South Africa’s Patents Act precludes software from being patented. This is an oversimplification and is misleading.
When it comes to patenting software it is important to note that our Patents Act does not prevent the patenting of anything to do with software, but rather the patenting of “a program for a computer, as such”. We understand this exclusion to refer to code, rather than the technical concepts behind the code. Of course, the interpretation of the two words “as such” will determine what can and cannot be patented in practice.
There are no court decisions in South Africa clarifying what this means and indicating what types of software-related invention would be patentable. This requires us to look overseas for guidance. Europe has a Patents Act with the same wording as ours on this subject. The European Patent Office (EPO) applies a test which requires a software-related invention to have a “technical effect”. It is interesting and important to note that the EPO has granted 692 patents to Microsoft, and thousands of software-related patents to other applicants.
Some countries, such as the United Kingdom, apply relatively strict tests in determining patentability, while other countries such as the US have been more lenient in granting patents for software and business methods. The UK Patent Office has allowed patents for software-implemented inventions that provide for “a better computer”, or that “solve(s) a ‘technical’ problem lying with the computer itself”. On the other hand, in the USA the latest applicable test requires a new and inventive software-implemented invention or business method to be “tied to a machine” or to allow for the “transformation of an article”. The European approach mentioned above falls between the UK and US approaches.
There is no reason why South Africa should be an exception to the approach followed in patent-examining countries, and we do expect our courts to enforce patents for some forms of software-implemented inventions. As a software developer you can either investigate the situation and consider protecting your software-implemented invention through the filing of a patent application in South Africa (or elsewhere), or you can gamble that software patents will not be enforced – and potentially miss out.
Are some patents granted that are not valid? Undoubtedly, and not only in non-examining countries like South Africa. Is this problem unique to software-related patents? No. Are software patents a bad thing? According to Paul Graham, if you are opposed to software patents, you logically are opposed to patents in general. Read his insightful comments (Are Software Patents Evil?) and see what you think.
Software patents in SA – comments and views