ICT industry misunderstands patents

By Leon Engelbrecht, ITWeb senior writer

Johannesburg, 17 Sep 2007

The South African ICT industry is misreading the Patents Act, and this is costing it money, says Spoor & Fisher patent attorney Chris de Villiers.

He says it is commonly wrongly asserted that software can generally not be patented and must be protected under the Copyright Act.

"This view is widely held, but is based on a misunderstanding of the South African Patents Act, which has very similar wording to the European and UK legislation on this point."

He adds that, in the absence of any South African case law, "we have to be guided by the experience of these countries, where software inventions having 'technical character` or giving rise to a 'technical effect` are in fact patentable".

De Villiers says South African software innovators who want to protect their technology would be foolish not to apply for patents in the current scenario.

What is a patent?

In terms of patent law, the state rewards the owner of an invention with a 20-year monopoly in exchange for disclosing the invention to the public. Only the inventor - or someone acquiring the invention from the inventor legitimately - is allowed to exploit the invention and is thereby able to "enjoy the whole profit and advantage" of the invention for that 20-year period.

The attorney says it is his considered opinion that the view that software is not patentable is "largely incorrect and is based on an uncritical reading of Section 25 (2) of the South African Patents Act, while ignoring Section 25 (3) and the experience of other countries.

"Thus it is by no means the case, as alleged by anti-software patent activists, that any software patent must necessarily be invalid. In fact, in the circumstances it could be argued that software companies would be foolish not to apply for patents until the position is clarified, either by a court decision or by amendment of the Patents Act.

"Most countries allow software-related inventions to be patented to a greater or lesser extent, and there is no reason to expect SA to take a different position. If software turned out to be entirely unpatentable in SA, we would be an exception to the worldwide trend. There is no logical basis for assuming that our courts would interpret the existing legislation in such an extreme way," he adds.

Emotional response

Obtaining a South African patent is relatively inexpensive compared to other countries, says De Villiers. "[Therefore] it makes sense to go ahead and file a patent application in SA for an invention relating to computer software, rather than to sit back and wait for the position to be clarified."

Opponents often follow an emotional argument in opposing patents, he says, noting that a recent ITWeb report on patents attracted reader comments, including: "Software patents are evil (and illegal) too. The only people who ever get any real value out of patents are lawyers."

De Villiers says "this sort of ill-informed comment is widespread, but is based largely on ignorance - for example, ask IBM whether they get any value out of their patents - and may have the effect of confusing industry players who could benefit from the patent system.

"Patents are business tools. Whether they are valuable or not will depend largely on the merit of the inventions they protect, and the use to which they are put."