South Africa must take lead from NZ on software patents

By   |  July 15, 2010

In huge win for anti-software patent activists, New Zealand has announced that it will not change legislation to make software patentable in the country.

It is, however, a partial victory only as New Zealand’s Commerce minister, Simon Power, also announced he would instruct the Intellectual Property Office of New Zealand to draft guidelines that would allow inventions that contain software (embedded) to be patented.

Nevertheless, it’s a significant step forward for anti-patent activists.

Paul Matthews of the New Zealand Computer Society says that the decision is “great news for software innovation in New Zealand”. In a blog posting Matthews wrote:

We believe it’s near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, hence many software companies in New Zealand, creating outstanding and innovative software, live a constant risk that their entire business will be wound up overnight due to litigious action by a patent holder.

He said that the NZCS would continue to monitor the guidelines for embedded software to “remove the possibility of software patents by stealth”.

No clarity in South Africa

Unlike New Zealand, South Africa still lacks clarity in the area of software patents and this uncertainty is being exploited by a number of international software companies. This despite a Patent Act which precludes software from being patented.

Microsoft is, unsurprisingly, one of the main registrants of software patents in South Africa. A search of the patent listings at the Companies and Intellectual Properties Office (when it is working) turns up more than 300 patents held by Microsoft. Among those are the controversial OOXML patent, which has been contested around the globe, as well as patents on selecting a tab in a tabbed browser window, splitting software downloads into smaller parts, and selecting view modes and settings on a PC. The majority of these patents have been filed since 2003.

Section 25 of the South African Patents Act No.57 of 1978, says that “Anything which consists of … a program for a computer” can not be patented under the Act.

This has been regularly contested by patent lawyers, among them Spoor&Fischer which acts as Microsoft’s representative in most of its patent applications and defences. (See one response here)

But, wrangling over the wording of the Act is just part of the problem. As big a problem is that South Africa is a “non-examining” patent office. In other words, anyone with any invention can apply for a patent and having it granted. It is essentially a bureaucratic process rather than one that examines the validity of patent applications.

Or, as Freedom to Innovate South Africa (FTISA) describes the problem: “Exceptions to patentable subject matter (such as computer programs) in the Patent Act are effectively ignored in the awarding of patents. This creates an environment of great legal uncertainty for indigenous software developers and consumers.”

South African developers constantly run the risk of breaching the ever-increasing number of software patents in the country, most of which are held by global corporations. And until clarity is achieved in South African patent law these companies will continue applying for software patents and the CIPRO patent office will continue to grant them.

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