In the previous, Industry Insight I compared US and European patent law. In this article, I will look at the issue of patented versus open source software in SA.
The South African government is urging researchers to file patent applications to benefit the country's economy. The government has established incentive schemes, such as the Patent Incentive Fund and Patent Support Fund, which are managed by the Innovation Fund.
The Patent Incentive Fund's aim is to incentivise inventors who have filed and obtained granted patents in SA. The aim of the Patent Support Fund is to provide financial support for patent portfolios of inventions emanating from publicly funded research institutions. Vides financial
The recent introduction of the Technology Innovation Agency Bill is stated to “provide for the promotion of the development and exploitation in the public interest of discoveries, inventions, innovations and improvements, and for that purpose to establish the Technology Innovation Agency”.
Furthermore, the government has also introduced an Intellectual Property Rights from Publicly Financed Research and Development Bill to facilitate the creation of knowledge that is derived from public funding and to protect the knowledge in the form of IP rights, such as patents, for IP that could have human wellbeing, military, economic and social benefits.
So, on the one hand, government has a position of supporting the patenting of technology, including technology developed by publicly funded research and development. On the other hand, government's position regarding software seems to be aligned with the anti-software patent point of view, with a free and open source software policy which requires that all government departments and institutions make use of free and open source software, and migrate to an open software platform.
Quite contrary
In March 2008, the Third Idlelo Conference on Free and Open Source Software and Digital Commons was held in Dakar, Senegal by the Free Software and Open Source Foundation for Africa (FOSSFA). South Africa's then Minister for Public Service and Administration, Geraldine Fraser Moleketi, stated: “The adoption of open standards by governments is a critical factor in building interoperable information systems which are open, accessible, and fair and which reinforce democratic culture and good governance practices”. The minister further said patents are “exclusive and anticompetitive in their nature” and there is no reason to believe society benefits from monopolies granted on computer program inventions.
It seems clear there is some disunity within government and its agencies, when the Innovation Fund through its funding instruments is urging the filing of patent applications in the ICT sector to enhance economic growth and competitiveness, while on the other hand a government minister suggests that patenting of computer program inventions is undesirable.
To free or not to free?
The use of open standards for software interoperability is widely supported, not only by open source developers. However, government's definition of open standards is skewed heavily towards the notion that everything related to the standard should be free of cost and any intellectual property rights.
Government's definition of open standards is skewed heavily towards the notion that everything related to the standard should be free of cost and any intellectual property rights.
Chris de Villiers is a partner at Spoor & Fisher.
Such a view may be influenced by ideological considerations but it may also be based on the notion that open source software is “free”. In the context of the General Public Licence, the word “free” refers to freedom to use, edit and redistribute, rather than free in the monetary sense.
While some open source software (OSS) is in fact free, the use of much commercial OSS is not free in practice and is typically linked to a support subscription or other revenue-generating model. The Web site www.follars.com has compiled a large amount of information on commercialisation of OSS, which is something of an eye-opener in this regard. An unknown author published an article on IT-Online in June 2007 and quoted an IDC survey which found that worldwide revenue from standalone open source software reached $1.8 billion in 2006 and predicted that this revenue will reach $5.8 billion in 2011, representing a compound annual growth rate of 26% from 2006 to 2011. Another factor to be taken into account is the cost of migration from proprietary to open source platforms.
Companies like IBM, SAP, Sun, Intel, Hewlett-Packard and Silicon Graphics are committed to using open source software as a core part of their business and are investing significantly in this area. It is, ironically, questionable whether companies like these will not end up monopolising the open source field in time.
In the next and final Industry Insight in this series, I will look at where SA goes from here when it comes to software patents.
* Chris de Villiers is a partner at Spoor & Fisher.
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