There is passionate discussion in South Africa, Europe and indeed the rest of the world over whether or not patents should be granted for software.
The Patents Act No. 57 of 1978 expressly excludes software from being admissible for patents, yet still certain large international corporations unashamedly break the law by filing for patents through a loophole in the system. Because of the system of checking applications in this country software patents slip through the system and are granted. Once granted, software patents are extremely difficult and very expensive to rescind.
What exactly is the difference between copyright and patents? Copyright is designed to protect the written word or an idea that has been put into print (for example a piece of music, a poem, a computer program) – as soon as something new is put into writing and signed by the author, copyright is in place and is valid for fifty years after the author’s death. Patents, on the other hand have to be applied for at considerable expense, and are normally valid for twenty years from the date of the first application.
According to South African Law, a patent may be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade and industry or agriculture. A patent, therefore, covers a principle of operation or construction. So, the following must apply:
- The invention must be new and must show absolute novelty
- The invention must be useful on a practical level. The Patents Act requires that, for an invention to be patentable, it must be capable of being applied in commerce, agriculture or industry.
- The invention must be inventive, that is, it must not be so similar to what was available or used previously that it required little or no resourcefulness to make the invention.
South African Law excludes anything that can be construed as an idea from being patentable, and is specific in the exclusion of
- mathematical methods
- aesthetic creations, e.g. fashion designs, motor vehicle designs, etc.
- architectural designs
- schemes, e.g. investment or insurance schemes
- business methods
- rules for playing games (the games equipment itself may be patentable)
- computer programs, and
- scientific theories, e.g. Einstein's Theory of Relativity or the Chaos Theory
It can be seen then that software patents are just not lawful in this country, but software is covered by copyright. Legislation regarding software patents does differ country to country. Software patents are legal in the United States of America but are not yet legal in the European Union, another area where there is intense debate over the issue.
There is no doubt that dispute over the subject of software patents will continue for years to come while large international corporations are accused of trying to shut out their smaller rivals.
For the latest information regarding the issue of software patents or patents in general, please contact one of our patent attorneys, who will be happy to assist you.