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SA patent opposition could be costly

By   |  August 29, 2006

The battle to get a Microsoft-held XML patent overturned may not be as easily won in South Africa as it was in New Zealand last week. And it is likely to cost a great deal more than the New Zealand challenge.

This is according to local anti-patent activists and the head of the New Zealand Open Source Society(NZOSS) Peter Harrison. NZOSS led the challenge to the patent in New Zealand.

One of the critical differences between the two scenarios, says Harisson, is that the patent was defeated at the “pre-grant” stage in New Zealand while in South Africa the patent has already been granted by the patent office.

This means that in South Africa the patent will have to be challenged in court.

“As such,” says Harrison, “it will be a far more expensive endeavour.”

Bob Jolliffe, a founder of Freedom to Innovate South Africa (Ftisa) and the person who initiated the fight when he delivered papers to Microsoft’s lawyers in June last year requesting they relinquish the patent, says “the NZOSS case was a pre-grant opposition. This is something we simply don’t have and its a major problem with our system.

“Not only are [locally filed] patents not examined properly, but we don’t even get the opportunity to challenge them prior to being granted.

“The main issue that [the South African case] raises,” says Harrison, “is the poor quality control on patents. There is very clear prior art on this patent. It would not last long in court, but this assumes that the person or company being sued has resouces to fight it.”

However, says Harrison, “the real issue here is not the bahaviour of Microsoft or any other software company, but the … poor quality of patents which can damage the South African innovative industries.

“The NZOSS is also lobbying government in this regard, and there is a Patent Bill before the NZ Parliament due to be passed in 2007.”

Harrison warns, however, that the issue is far bigger than just one patent or one company. “If the system isn’t fixed you may find a huge wave of patents that will overwhelm small software development shops. This is what we are trying to avoid.”


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