Software has always been tricky when it comes to the Patents Act. Not just in South Africa, but overseas as well. We’re going to delve into the Patents Act and the specific requirements for software Patent registration. And we’ll look at some examples to explain all this the IP Braai way!
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A patent protects the idea behind your product. It provides you with a 20-year monopoly where someone else cannot manufacture or sell a product if their product has the same underlying idea as yours. In South Africa, the patentability requirements are absolute novelty, inventiveness, and the product must be mass-producible.
Can You Patent an App or Computer Software?
Is my invention patentable if it’s an app or computer software that does X, Y, and Z? This might seem like a pretty simple question, but the answer is far from straightforward.
Section 25(2) of the Patents Acts says a program for a computer shall not be an invention for purposes of this Act. So it would seem that the Patents Act excludes software from patentability…
Although, subsection 3 states, “The provisions of subsection (2) shall prevent, only to the extent to which a patent or an application for a patent relates to that thing as such, anything from being treated as an invention for the purposes of this Act.”
Let’s break it down.
Section 25(2) of the Patents Act relates to a software program, as such. The meaning of this section is not very clear. Our interpretation of this section is that we cannot file patent protection for pure software, but for a software-related invention.
European legislation, such as the European Patent Office Boards of Appeal has decided that as long as there is a technical character, or you achieve a technical result, you should be able to patent a software invention. If you still meet the novelty and inventiveness requirements, of course.
In the absence of South African case law, we can expect that the South African courts would be guided by the European approach.
So it’s not the case that all software patents are necessarily invalid. In fact, we would seriously recommend, if you are a software company, and you have a software-related invention, that you please do file for patent protection. The scenario would only change if we have a change in legislation, meaning court cases deciding differently, or we have an amendment to the Patents Act.
Patents for Software-Related Inventions
So pure software is out, but a software-related invention could still be patentable.
An autopilot system on an airplane or a big ship is a good example. The autopilot system drives the airplane or ship in the absence of a human pilot to keep its course. So here we have a system consisting of software and hardware, and several interfaces between them.
The software in this example needs to interface with several hardware measurement systems, like a GPS, to know the location of the ship, the orientation, and the speed. That same software system then interfaces with the engine room to increase or decrease speed, and the rudder to sustain or change its orientation.
So it is the interfaces between the hardware and the software of the system that makes it work. And that makes the system patentable.
Cases Where Software Is Patentable Without Hardware
You don’t need hardware interfaces in order to patent a software invention. However, such software would still need:
- multiple components such as databases, interfaces, 3rd-party systems;
- to meet the novelty and inventiveness requirements;
- a technical character and/or can produce a technical result.
Uber is a good example of this since their application consists of a driver database which is linked, via their application and software systems, to a customer in need of a ride. This may be considered a technical result. So if Uber came up with this kind of application first, the system would definitely be patentable.
An example of software that is NOT patentable
Candy Crush is a well-known game, although it is not considered a system. And in our opinion, it does not produce a technical result. It’s purely a game. Plus the Patents Act actually excludes games from being patented.
Preliminary Patentability Assessment (FREE)
IP Braai offers a [FREE] Preliminary Patentability Assessment, where we take a look at your invention in terms of novelty and inventiveness to determine if a patent is the correct protection mechanism. This is a high-level assessment where a patent attorney takes a look at your invention and provides feedback based on their experience and expertise.
This assessment does not take that much time which is why we can offer it free of charge. So if you think that your invention is new, you’ve done some research and you can’t find anything similar, get in touch so we can conduct the assessment and provide feedback.
If you have developed software that you believe meets these requirements, get in touch to discuss our Patent Registration service.