Software patents in south africa

The evolution of software patents in europe inventa. This invention, which constitutes either a product or process, has to be brought about as a result of an inventive step. The result would be a valid south africa patent which is enforceable against and will provide a barrier to entry for multinational software companies. The debate regarding the patentability of business methods and computer programs has been sparked in south africa, as elsewhere in the world. Australia requires software to be industrially applicable. The patent office was routinely rejecting applications for pure software because they believed that, under the law and under current jurisprudence, that software patents were not eligible for patent protection. As is the case in many other countries, a patent provides legal protection for a new and industrially applicable invention. It discusses what a software patent is and the legal. The privately owned company was formed in 2014 as a specialist it security distribution company with its. Does the software produce a useful, concrete and tangible result. Microsoft has been granted over 300 patents in south africa, most of which are for software ideas. Ip software distribution ltd ip soft pty ltd in south africa is a vancouver canada based specialist distributor of it products and microsoft azure cloud services.

In south africa, patents are regulated by the patents act no. This despite a patent act which precludes software from being patented. Patent registration in south africa ip guide ip coster. The patent law in south africa requires that an invention meets three important conditions. There have been no dispute settlement procedures regarding software patents.

As such the patent lawyers will conduct a novelty search in trade magazines, online, through databases, and newspapers around the world to establish whether any reporting was. In addition, the dispute has also drawn attention to other issues such as trade secrets, the misuse of confidential information and unlawful. So it is no wonder that intellectual property protection of software is crucial not only for the software industry, but for other businesses as well. According to the south african patents act act no 57 of 1978 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 or industry or agriculture section 251. While some commentators are in favour of software being patentable, such as paulo ferreira, strategy manager at microsoft south africa 2008 and others are vehemently opposed, for example, the south african minister of public service and administration, geraldine frasermoleketi, a common thread is the assumption that software is not.

The south african patent system is the system by which patents are granted in south africa. Africas own production and innovation of geographically unique products such as south africans ubuntu software releases, malawian tea, ethiopian coffee, and music from all artistes the continent over, will be profoundly and negatively. South african ip practitioner darren olivier argues thus. Software innovation is valuable to individuals, startups, and businesses. Their standard patents are thus similar to the utility models and innovation patents available in other countries. As anyone familiar with the challenges faced by tech startups in south africa knows the biggest challenge is getting vc funding.

To use the law as protection, programmers and businesses treat software as intellectual property. Why intellectual property for software is important. It gives you the right to stop others from manufacturing, using andor selling your invention in south africa without your. Frasermoleketi, south african minister, slams ooxml and software patents. Dan ravicher on software patents software patents wiki. In south africa, a program for a computer is excluded from recognition as an invention by section 252 of the patents act. Open innovation and software patents mozilla open software patent license agreement v1. A 12month term from the priority date applicable for filing patent applications under paris convention may be extended for three additional months in south africa. South africa is one of 148 countries that is a member of the patent. A patent search is conducted to ensure that no existing patents are being infringed and that the invention is newnovel s25 of patent act. South african law is fairly clear that software in the form of computer programs cannot be patented.

The patenting of south african software is the subject of much heated debate. While the concept has never having been examined by our judicial system, software patent applications are being granted by our patent office. Such a software patent may well place the local competitor on as near an equal footing with these multinational companies as they are ever likely to get. Pdf patents and economic development in south africa. Basically the state of affairs that you in south africa have today. I sincerely hope that they do not change the kenyan patent law to allow them. Software patents computer program inventions patent attorneys. Software and hardware work in tandem in today s information society.

Accordingly, such patents and nonpatent literature cannot be ignored for any patent studyopinion covering south africa. However, in 2005, the european patent organization epo had already granted over thirty thousand patents related to computer programs and, currently, computerimplemented inventions are the object of approximately 35% of european patent applications. The search for the south african granted patents can be conducted in the cipc office or online by using the following link. This is largely incorrect, and is based on an uncritical reading of the south african patents act.

The intellectual property protection of computer software has been highly debated at the national and international level. Patenting software world intellectual property organization. Entitled patents and economic development in south africa. Software patents in south africa to be or not to be. Managing intellectual property rights, the paper argues that the current south african intellectual property rights regime not only facilitates exploitation by foreign interests, but is also detrimental to the countrys development efforts because it fails to support national innovation. Complete patents must be signed and filed by a patent attorney. If so, the result must be more than a mere abstract idea. Interpretation by the sa courts in patent copyright matters. There has unfortunately not been any case law to provide us with guidance regarding the patentability of softwareimplemented inventions in south africa. Cape town protecting sadeveloped software, especially for the cellular industry, is. But south africa will not become a desirable location for vc funding for as long as software patents continue to make it a hostile environment for vcs.

Software patents worldwide is the only resource providing expert insights and howto guidance on drafting patent claims in the worlds key markets, which means you can practice with confidence and avoid errorseven in unfamiliar territory. Microsoft, novell and others mafiaa enters the united states government, propatents lobbyists also. South africa currently faces a stark choice between protecting and incentivizing innovation and stymying lifesaving therapeutic breakthroughs. I wish that the us would follow the kenyan system, and not allow software and business method patents.

Securing patent protection in south africa is affordable. South africas ip office, for example, received 7,444 patent applications in 2012. Of these, 608 were filed by residents, the rest were by foreign applicants, according to wipo statistics. Inventors struggle to protect patents in africa reuters. Software patents, third edition wolters kluwer legal. The protection provided by the south african patent system is a major contributor to the success of new inventions and the millions of rands in earnings that they generate. In terms of the south african patents act, individuals may file their own provisional patent. More articles about software patents in south africa can be found under. This fee covers drafting, filing, prosecution and grant of the south african patent. Fees associated with filing a patent application in south africa as well as other patent fees are available in the fee calculator. Software patents, third edition will show you how to draft accurate, complete patent applications applications that will be approved by the patent office and that will stand in court if challenged. This open software patent license agreement agreement is made between you and the licensor identified below. In addition to the above two tests, the south african patents act specifically excludes certain. There are many patents that are filed only in south africa, and nonpatent literature that is published only local languages or local journals of south africa, and nowhere else.

At present, the south african patents act excludes a program for a computer, as such, from the. Microsoft is, unsurprisingly, one of the main registrants of software. However, there has not been any litigation in south africa on the specific section in the south african patents act dealing with the exclusion of software from patentability. Software patents in south africa the patenting of south african software is the subject of much heated debate. The law is the best way to protect material such as software. As such the patent lawyers will conduct a novelty search in trade magazines, online, through databases.

Does anyone know whether there is an online way to search south african patents and obtain the full patent information. South africa must take lead from nz on software patents july 15th, 2010 no comments. The issue of softwarerelated patents is such a case. Tax amortisation of intangible assets in south africa. As an exception, amortisation of acquired patents can be deducted with a 5% p. Software patents computer program inventions patent. This is a very unusual procedure and there are virtually no such licences that have been endorsed on patents in south africa. If a patent is endorsed as a licence of right and the patent holder fails to commence proceedings within two months of the date a licensee requested himher to do so, the licensee can commence infringement. For purposes of this agreement, you means you and your affiliates, and licensor means the mozilla corporation, mozilla foundation and any of their affiliates. Under the patent law the invention must be completely new. The result would be a valid south africa patent which is enforceable against and will provide a barrier to entry for multinational software companies in south africa. Unlike new zealand, south africa still lacks clarity in the area of software patents and this uncertainty is being exploited by a number of international software companies. Although this initial search is not compulsory it is advisable. Local knowledge of complex legal systems, legislation, courts, applicable processes, prevailing practices and risks can be the difference between success and failure.

The south african patent system is the system by which patents are granted in south africa as is the case in many other countries, a patent provides legal protection for a new and industrially applicable invention. Our patent law is, however, mirrored on european and uk patent law and the approach taken in europe may therefore be a good guideline for south africa. Artistic creations are covered by laws, which protect works such as books, films, music, paintings, photographs and software and give the. Never before has one resource broken down the process for drafting software patent specifications and claims into manageable segments. Investing and operating in africa is not without challenges, particularly from a legal perspective. There has unfortunately not been any case law to provide us with guidance regarding the patentability of software implemented inventions in south africa. In addition, the dispute has also drawn attention to other issues such as trade secrets, the misuse of confidential information and unlawful competition. The debate in sa has been fuelled by recent developments in the european union eu with regard to software patentability. For more information on the requirements for patentability in general, please refer to our patents page.

This is an uncertain and highly debated area in our law. Essentially, this new product or process has to represent a. Article 11 of the income tax act 58 of 1962 kpmgtaxation of crossborder mergers and acquisitions south africa 2012. Its relevance for patentability in the domains of, for example, computerimplemented business methods, computer science and software information technology remains uncertain, since the trips agreement is subject to interpretation, like all legal texts. The united states patent office, the south african patent office, the european patent office, as well as the world intellectual property organization all recommend that the services of a qualified patent attorney be employed for the drafting of patent specifications. However several arguments have been advanced in favour of software patents generally. South africa must take lead from nz on software patents. Term for filing a patent application in south africa. Our charge to prepare and file a south african complete patent application is r11,950 excl. A muchpublicised patent dispute has shone a spotlight on patents, and particularly the issue of software patent protection.