Archive for the ‘Software’ Category
The concept of a patent pool is fairly new, if not totally unknown in the South African IP protection context.
The concept of a patent pool is however not new in the world. The first example of a patent pool date back to 1856 where sewing machine manufacturers, Grover, Baker, Singer, Wheeler and Wilson had patents and were in the process of instituting patent infringement actions against each other. This obviously led to the danger that profits can be diluted because of legal fees.
The parties then entered into cross-licensing agreements to make technology available to each other whilst limiting cross-licensing fees and thereby to lower the costs of products to the consumer.
Another example of a patent pool dates back to 1917 when patent held by the Wright Company and the Curtiss Company hampered the development of new airplanes that were needed for World War I. The solution was that the parties "pooled patents" by entering into cross-licensing agreements which allowed the relevant parties to use each other technologies whilst earning a realistic income from their patents.
In essence the basis of a patent pool is a cross licensing arrangement, to the benefit of the patent contributors and administered by an independent administrator.
However, in most instances patent pools are complex arrangements, which need to be set up by experienced practitioners in order to achieve their aims for the benefit of the contributors, and the end user, whilst avoiding anti-trust/price, fixing enquiries.
For more information on Patent Pools, Cross-Licensing, and Intellectual Partnering, you are welcome to contact Smit & Van Wyk, Inc.
Some of this information has been taken from Wikipedia, and for further reading, the following links make for interesting reading matter:
http://en.wikipedia.org/wiki/Patent_pool
http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war#The_patent_pool_solution
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The remark is often made that institutions do not protect their IP because they favour an "open source development" or "open source innovation" model.
The basis of this viewpoint is that knowledgeable individuals contribute "free of charge" to provide products (software etc.) which is available to other contributors. In exchange such individuals has access to the development of other contributors "free of charge". This development model is used to develop cutting edge technology in a rapid changing technological environment.
Opposed to the open source development model there is the "Legally protected" development model, which use legal tools to protect IP for the benefit of the individual or the institution. The advantage of this system is that the individual or institution can recover their investment in research and development over a period of 20 years. This model is used by pharmaceutical companies to develop new health solutions for the benefit of mankind, but with the knowledge that their (very costly) investment will be recovered in future.
These viewpoints are often presented as opposing viewpoints with proponents of each justifying the one against the other. However it is a widely accepted fact that each of these models has its own benefits and their own drawbacks.
Smit & Van Wyk, Inc. with individuals coming from a background of high technology development, but being at the forefront of legal protection of our clients rights, have the view that these two diverse models can be combined into a new "Legally protected open source model" (LPOSM) to maximise the benefits of each model whilst minimising the disadvantages of each model.
The LPOSM model incorporate use of open source technologies as input to new development and making available new developments to the open source community where appropriate, but to incorporate certain technologies (normally not available in the open source market) into products by using patent pools and commercial agreements to access such technology whilst legally protecting certain core competencies.
Smit & Van Wyk, Inc. can be contacted for more information on open source development, the LPOSM model, and legal protection of IP rights.
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South Africa Patent Laws favour the usage of attorneys Even though it is possible to file a patent application directly without the usage of a patent lawyer or attorney, it cannot be recommended. The reason is simple. The South Africa patent laws favour the usage of an attorney. The South African Patent Office is a non-investigating office. This means that you can complete the application, file it and even receive the patent right upon payment of the required fees without the invention complying with all the requirements. It is not a loophole in the system. It simply means that the responsibility lies with the applicant to ensure that the invention is indeed patentable and that the application will be done correctly. The snag comes in when another applicant or company questions the patentability of the invention down the line or argues that the idea was not original at all. Lawsuits may follow and all the money already spent in the commercial development of the patent may be lost forever. You will need the help of a patent lawyer who knows the South Africa patent laws and will conduct the novelty searches and apply in the correct manner right from the word go.
Click here for more information regarding the LESI Conference 2010
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Procedural and substantive requirements for the grant of patents are different from one country/region to the other. In particular, practices and case law regarding the patentability of software-related inventions vary significantly in different countries. For example, in some countries, “inventions” within the meaning of patent law must have a “technical character” and software as such is not considered a patentable invention, while in others, such requirements do not exist, so that sofrware is generally patentable subject matter.
It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection. A list of URLs and a directory of national and regional intellectual property offices are available.
On the other hand, computer programs may be protected under copyright. However, according to a well-established principle, copyright protection extends only to expressions, not to ideas, procedures, methods of operation or mathematical concepts as such.
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We will be contributing at the upcoming IIR conference on Intellectual Property Protection in Johannesburg.
Outline
What do patents traditionally protect and how are inventions defined by law.
How software patents aim to protect pieces of software that may or may not legally be considered inventions.
What constitutes a software invention, and hence a patentable software invention, as dictated by territorial
substantive laws (RSA; USA; EU; Japan) that draw from tangible, physical inventions; and
case law (rulings of the US Courts; US Patent and Trade Mark Office; European Patent Office).
How copyright protects content as input to software programs and program code, but not software functionality, regardless of inventiveness.
Software encapsulates more than an invention or program code: software may embody:
- an invention (US: “transformation of articles” and “concrete hardware realization”; EU: “technical effect” and “Computer Implemented Inventions”);
- functionality contained in intangible, compiled code;
- software design;
- content;
- frameworks for hosting content, e.g. database structures;
- algorithms and communication protocols.
Challenge: How to protect software as a whole?
A Framework which considers:
- Software patents (and possible interpretation by RSA courts);
- Open source licensing strategies – BSD vs. GPL; “clean-room” approaches;
- Royalty-free patent licenses;
- Proprietary approaches;
- Content protection mechanisms, e.g. Digital Rights Management;
- Directives on patentability of computer-implemented inventions.
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1. Novelty Searches in view of obtaining patent protection for an invention:
If a product or concept identical to yours is already in existence anywhere in the world then you cannot obtain patent protection for the same concept in South Africa (or in most other countries for that matter). However, should you have invented an improvement on an existing concept and the improvement is (i) new, (ii) inventive, and (iii) has a use in trade, industry or agriculture, then such improvement may certainly be patentable.
In order to get an indication of whether such a product already exists anywhere in the world, we are able to conduct a fixed-cost, fixed-time novelty search through the European and American patent offices' databases. Such a search would give an indication of the novelty of the invention, however, keep in mind that it would not guarantee the invention's novelty. (The cost for such a search is typically R2500 including VAT for a fixed-cost, 2 hour patent novelty search and reporting thereof).
2. Software Patents
Section 25(2) of the South African Patents Act excludes from patentability, inter alia, a computer program and a scheme, rule or method for performing a mental act, playing a game and doing business. According to Section 25(3) of the Patents Act, these categories are excluded from patentability “only to the extent to which a patent or an application for a patent relates to that thing as such”. Although there is this exclusion, it is important to note that a South African patent application is not subject to substantive examination, but merely undergoes formal examination to ensure that all of the documentary requirements have been met. Accordingly, no patent application has to date been rejected by the Registrar of Patents on the basis that the invention disclosed therein falls within one of the aforementioned categories. As further discussed, once a patent has been granted, a third party can apply for revocation of the patent. In such a revocation action, the court would then decide whether or not the subject matter of the patent is patentable, but the onus of proof is generally on the objector. There have, however, not yet been any South African court decisions on the patentability of software or business-method based inventions. The current trend in the United Kingdom and at the European Patent Office is to grant patents for software-based inventions. Methods of doing business are patentable in the United States. It is thus important to bear in mind that a South African provisional patent application would provide a priority date for corresponding foreign patent applications in countries where these kinds of inventions are not excluded from patentability.
Have a look at http://www.svw.co.za/software.html and http://en.wikipedia.org/wiki/Software_patent, specifically the section entitled “history and current trends”. Although not authoritative, these texts provide up to date insights into the patenting of software-related inventions.
3. Patent application:
Click here for our Patents Brochure to assist in answering some of your questions regarding the patenting process.
The drafting of a patent specification is best done by registered patent attorneys. Our charges for the drafting and filing of a provisional patent application at the South African Patent Office typically range between R12000 and R15000 and depends on the complexity of the invention. This includes the official Patent Office fee, as well as the costs of all drawings, which are done by our draughtsman. As such, we do not require formal drawings from you - merely a good description of the invention and some freehand drawings. It usually takes about 20 working days for the preparation and forwarding of the specification to you for approval prior to filing.
If all goes well and there is a market for your product, you should, within 12 months from the date of filing of the provisional patent application, file a so-called complete patent application which, in South Africa, will be about 30% more than the cost for drafting and filing of the provisional patent application. Foreign patent applications also need to be filed at such time, given a reasonable possibility of success in a foreign market.
4. Click here and complete our Invention Description Form and return the form to us so that we may provide you with a more accurate cost estimate. We will be able to provide you with information regarding the suitability of your invention for design protection upon receipt of the completed IDF. The IDF also contains the website addresses of the US and EU patent offices, where you may conduct your own patent and design searches to obtain an indication of whether your idea already exists.
5. Our communications with our clients are subject to attorney/client privilege and are treated in a highly confidential manner.
6. We look forward to hearing from you. Please keep the invention secret until it has been protected.
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The Second World Copyright Summit started its first session in Washington USA. Calls for greater cooperation amongst all countries have been made to help crack down on copyright violations. The advent of the Internet has sparked numerous copyright violations; mostly because many internet users think that something that is on the Internet must be free (this is according to Orrin Hatch a member of the US Senate). Calls have been made for stricter action against piracy of music and videos with suggestions that the perpetrator should receive an email warning if downloading music or videos illegally, and then receive a final warning in letter format, after which the user’s internet account must be suspended for up to a year. Internet users can expect stricter regulation in future to help prevent copyright violations which cause severe financial losses for musicians, writers, artists, and producers.
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Although the consumer may feel that some software programs are just too expensive to purchase and thus rather opt for software piracy, it should be noted that software piracy doesn’t only steal from the original rights holder, but it also contributes to slower economic growth. Job creation and tax revenue are two areas affected by software piracy. In 2005, software piracy rates in South Africa were around 37%. The following constitutes software piracy – illegal copying, distribution, renting and selling of copies of the original without licenses and or written permission to do so. As the developers of a product the original owners of the rights have the right to compensation for the usage, distribution or commercial exploitation of their products.
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Many people mistakenly believe that software is protected by patent laws in South Africa. Software cannot be patented in South Africa, instead the law makes provision for software copyright protection. The following will qualify for software copyright protection:
Source code
On-screen lay-out
Character or animation that is part of a specific program
The above are the broad categories. The South African software copyright protection however, is not adequate to deal with the expansion in the industry. The need for patenting rights regarding certain aspects of software programs is on the rise. The European law has been well developed regarding patenting rights for computer programs and provides clear guidelines as to the technical characteristics required for patentability of a computer program. Since we are not there yet, and have no court history of interpretation regarding patentability of computer programs in South Africa, we still have to settle for the allowable software copyright protection that exists.
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October 29, 2008 | Software
A glossary of legal terms used in technology – part 5
TC: treacherous computing — A somewhat pejorative term used to describe the development of computer hardware in which the makers of software loaded on the computer have the right to prohibit the owner of the computer from using it in certain ways.
TC: trusted computing — A relatively neutral term used to describe the development of computer hardware in which the makers of software loaded on the computer have the right to prohibit the owner of the computer from using it in certain ways.
vendor lock-in — Condition where a person or organization has become dependent upon specific hardware and/or software, and where it would be impossible or prohibitively expensive to change to something else.
viral — A type of marketing where users of a product are encouraged to spread word of mouth advertising about the product. Also refers to videos published over the Internet.
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