One of the main requirements in most countries for an invention to be patentable is that it must be technical. An invention is defined as a product or process that provides a new way of doing something or offers a new technical solution to a problem.
A patent is an exclusive right that is granted by the Patent Office to the inventor for a particular invention providing that it meets this and other requirements. Once granted a patent bestows upon its owner the right to exclude anyone else from making use of the patented item, normally for twenty years. South African patents are granted by the Patent Office, which is a division of the Companies and Intellectual Property Registration Office (CIPRO), which in turn is a division of the Department of Trade and Industry.
There is presently much debate, not just in South Africa, but throughout the rest of the world, as to whether computer software – that is to say algorithms or programs, may be patented.
An algorithm or a program is essentially source code, that is to say it is words that are written as conceived by the mind.
As such, they cannot be described as a technical invention, but are covered automatically by copyright once written and signed by the author. Nevertheless a process that engages the use of an algorithm or program might be patentable provided that the process is used to solve a technical problem.
It can easily be seen why the patentability of algorithms presents a major problem for Patent Offices throughout the world until the law is made clearer. In the United States programs or algorithms are considered technical inventions and may be patented under the Law.
There is no case law to fall back upon in South Africa, so as there is no precedent the Courts look at foreign case law for direction. Another requirement is that an invention as well as being technical must show novelty.
As with other inventions it is absolutely vital that it should be kept secret until such time as a patent is issued – clearly if a program has already been available on the open market it is no longer new and cannot show novelty.
Other requirements are that the invention has to be useful to one or more of agriculture, industry or commerce, and that it should not be obvious to a technical expert in the field of the invention. Is there any way then that the software for a computer game, for example, can be patented?
If you are the inventor of a novel technical invention the first thing to keep in mind is to not tell anybody about it before you have applied for a patent. You should never discuss or show your invention to anyone unless they are legally bound to keep it a secret. Any type of public disclosure al all will nullify any possibility of being granted a patent. So, no talks, chats, e-mails, press releases, or any other public disclosure.
In fact, the only person with whom you can confide is your patent attorney, who is bound to secrecy by a code of ethics. If you have any queries regarding patenting software or technical inventions please contact one of our patent attorneys.
|
