The law around protecting computer technology or programmes by way of registered patents makes for an interesting debate, as many jurisdictions have different approaches to this.
When registering patents in South Africa, an important factor to be aware of is that South Africa does not currently have a substantive examination system. This means that patents that are filed in South Africa are only examined by the South African patents office, for compliance with all formalities stipulated in the Patents Act, 1978. Patents are not examined to ascertain whether they are novel, not obvious or contain an inventive step. They are also not examined to establish whether they are useful or capable of being applied in trade, industry or agriculture1. In the circumstances, patents that are registered in South Africa, which do not comply with these standards, could be challenged or revoked in due course, when the owner of the patent tries to enforce the patent against a potential infringer.
In South Africa, computer software is protected by copyright under the Copyright Act, 1978. Copyright is protected automatically in South Africa, provided that certain formalities are met, and it does not require registration. Our lawmakers carefully consider the interplay between the various types of intellectual property rights so as to balance the rights of the owners of the intellectual property in question and the rights and interests of the general public. In an attempt to get this balance right, South Africa also has a unique position or approach to this area of law.
Section 25 of the Patents Act regulates what can and what cannot be patented in South Africa. Whilst section 25(1) stipulates what inventions need to comprise in order to be patentable in South Africa, section 25(2) specifically sets out what does not constitute an invention for the purposes of the Act. This specifically includes “a program for a computer”2. At first glance, this seems to make the position on this topic clear under South African law. However, this is qualified by section 25(3) which effectively provides that this express exclusion applies “only to the extent to which a patent or an application for a patent relates to that thing as such”. Therefore, whilst the software itself is not capable of patent protection in South Africa, if it discloses anything that is novel, contains an inventive step or can be applied in industry, trade or agriculture, that aspect of the software would be capable of patent protection.
This may introduce a level of confusion into the minds of software developers that operate in South Africa. However, a good rule of thumb is that; if the novelty lies in how the software interacts with the hardware or device in question to solve a real technical problem, that would be capable of patent protection in South Africa. If that is the case, the patent would also be likely to stand up to scrutiny if that patent was sought to be enforced in due course.
There is, however, currently no case law authority on this point in South Africa. We therefore advise that all developers who think that they may have aspects of software that are novel, and that meet the other requirements for patentability in South Africa, contact an intellectual property attorney, as soon as possible, to safeguard any rights that they may have before they make the software available to the public anywhere in the world.
