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Multi-nationals ignore SA patent law

By   |  January 22, 2007

“Does Microsoft intend to continue to break the law by filing software patents in South Africa?” This was the question Derek Keats of the University of the Western Cape asked Microsoft national technical officer, Potlaki Maine, in an open debate held at Freedom to Innovate South Africa’s workshop on software and business method patents last Friday.

Maine responded that all Microsoft’s patents had been filed through government channels and were completely legal. Keats retorted that although Microsoft had found a gap in the process of filling patents, they were still guilty of breaking the law.

This issue summed up the the problem FTISA wants to address: although software patents are not allowed in South Africa, this is not being enforced and software patents are still being filed.

South African law does not allow for patents on computer programs (section 25 (2) of the Patents Act No. 57 of 1978). Yet the problem is that, as a non-examining country, the patent office does not check the validity of the patent. The patent office only checks that payment has been made and that the correct forms are filled out. For this reason, software patents slip through the process illegally.

Once these patents slip through the system they are extremely expensive to revoke, with a High Court decision by the Commissioner of Patents costing about R1 million. In the case of appeals, the costs could increase as much as three times.

Maine suggested that if it is the case that the patent office and government are not doing their job in enforcing the law, then pressure should be placed on them to rectify the situation.

Novell South Africa’s CEO, Stafford Masie, stated that he would personally take on that challenge. Masie had also had earlier made a presentation and faced Keats’ unforgiving questions. The two had previously had what Masie described as a ‘fruitful debate’ when Keats’ publicly stated that he would do what he could to ensure the UWC no longer uses Novell products following the Novell-Microsoft deal last year.

Maisie’s attitude to software patents was that they were used as a form of protection. Citing the example of mutually assured destruction, he said that the company’s arsenal of patents was there to protect both themselves and the open source community should any other company threaten to use their own patent portfolios.

Although the response from the crowd was dubious and cautious, Masie sought to portray Novell as a champion of the open source movement. He also made mention of the influence that Novell could muster with high ranking government.

Bob Jolliffe, who organised the event, said that he would like to see Maisie stand by his word on his undertaking to place pressure on government to see that Microsoft are no longer able to file software patents.

Jolliffe also pointed out the fact that the issue FTISA wants to address is larger than the locking of horns between Microsoft and anti-software patent supporters. Although it was easy to accuse Microsoft of abusing the current system, the problem lies within the South African system itself.

Other highlights of the event were talks by two renowned international speakers.

Head of the Department of Politics and International Relations at the University of Lancaster in the UK and an expert on intellectual property rights and the information society, Professor Chris May’s lecture on software and business method patents in the international context is available as a podcast here. In his talk May outlined the challenges that patents represent internationally. One striking example of how developing countries can be overpowered by large multinationals was the example of the Indian government’s attempt to challenge 500 rice patents. Of the 500, India only had enough litigation funds to successfully challenge one of these.

Dan Ravicher, executive director of the non-profit Public Patent Foundation gave an interesting and at times frightening account of US patent law and the various efforts made by the US to exert control over the rest of the world. A US citizen and self-confessed patriot, Ravicher none-the-less used the word ‘obnoxious’ to describe the US’s claim that any internet site that a US citizen can interact with falls within the jurisdiction of US courts.

Input from Friday’s event was taken into consideration when FTISA members met on Saturday to draw up a strategy for addressing these legislative and government issues. The complete strategy document is expected to be completed in the next few weeks.


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