How to protect Mobile Apps in South Africa
Traditional protection of Mobile Apps
The source code, on-screen layout and graphics that form part of a mobile application is protected by Copyright, but what about the underlying principle of operation of the mobile application? How can you protect your mobile application in terms of the South African Patents Act?
Mobile Apps Patent Protection
The South African Patents Act excludes a “program for a computer”, from the definition of an invention. However, there has not been any litigation in South Africa dealing with the exclusion of software from patentability. So we have no clear indication of the interpretation that the courts would use. This means that our courts may be influenced by rulings from other countries, such as the United Kingdom. The UK Office has accepted patents and claims to computer programs since 1999. There is, however, a provision that the application must produce a technical effect when run on a computer (or mobile device) to render it patentable.
As with all other inventions, mobile apps must be new, inventive and have a use or application in trade, industry or agriculture. To overcome objections as to whether the mobile application involves an inventive step, it may be helpful to determine what the technical problem is which has been solved through use of the program. The presence of such a technical contribution is usually sufficient to establish that the claimed subject-matter has a technical character and therefore is indeed a patentable invention.
Filing of Mobile Apps patents
A mobile application can often be described as a technical method of performing a technical act. When we describe a mobile application in a patent specification, we often describe the technical method, rather than the software as such. Therefore, it is our view that mobile applications can be protected by means of a patent application if the specification is drafted by a patent attorney. Furthermore, the South African Patent Office is a non-examining patent office. This means that patent applications are not subject to examination for inventiveness, but merely on the formalities. It is therefore unlikely that the Registrar of Patents will reject your patent application because it contains claims to a “program for a computer”. However, this does not mean that the patent granted for your invention is going to be valid, but it may be worthwhile to file the application anyway, rather than taking the risk of exploiting your invention without a patent.
(How much does it cost to Patent a mobile app?)