Audio Transcription of Interview on Classic FM on 17 July 2006; Patenting Computer Software



Once again the topic is intellectual property with the people from Spoor & Fisher and in the studio, Lance Abramson. And Lance, welcome once again.


Morning, Tony


Thanks for being here. We’re going to talk about computer software. Now is it possible to patent computer software?


Tony, yes you often hear people say that computer software is not patentable, and it is unfortunate and it is simply not true. However, it does have historical roots. Because in the early days of computer software, the software actually took the form of a punch card, so if you picture a card with holes in it, the early legislators – we’re talking in the 1960´s and 1970´s - treated this new kind of thing more like a book than a technology. They thought the best way to protect this would be to protect the layout of the holes in the card, because if you could not copy the layout of the holes then the owner of that piece of software on that card would be protected. However, with the development of computers and computer software this quickly became hopelessly inadequate for many types of computer software and the situation changed. The first change was in 1999 in the USA where their Federal Court of Appeals dropped any kind of bar to patenting computer software as long as it meets the other requirements for patentability, being new and inventive. So if the software functionality is new and inventive then the US Patent Office has said that it would be allowed to be patented. Other countries quickly followed suit to some degree or another and so we find ourselves in a situation today where the bars have been dropped completely in many countries, and to a large degree in other countries.


And the situation with computer software in South Africa then?


Yes, unfortunately our Act is quite old. Our Act is from the 1970´s and so we have this phrase in our Act which says that "computer software as such" is not patentable, but we don´t know what that means because what is "computer software as such" and what is not "computer software as such"? Unfortunately we don´t have any case law to date where the courts have defined for us what this means. The saving grace for us in South Africa is that we have a registration system which means you can go to the Patent Office and file your patent application and it will be granted irrespective of its subject matter. So, an inventor can get granted a South African patent for their software and then when this matter is clarified for us retroactively we will know what the validity of those patents is, and because of this there are literally hundreds of patents for software being filed in South Africa every year.


OK, now Lance, one final question. What is the difference between copyright and computer software and patenting computer software?



Good question, Tony. The copyright in computer software protects the direct copying of the software so you can´t take someone else´s software, and copy it onto another computer – or copy it onto another disk – that would infringe the copyright in that computer software. But if you liked what that piece of software does you could then go and re-write it from scratch without referring to the code of that software, and you would not infringe the copyright because you would end up with a very different piece of software that does the same thing. Patents on the other hand protect the functionality, so irrespective of the look of the software, the language that it’s written in, the structure of the actual code, if it implements the same patented functionality, then that patent will be infringed and that’s obviously broader protection for an inventor, and much more comprehensive protection. So I think the message for the computer software industry in South Africa is: if you have developments in the software field, check out whether they are patentable or not because after you put them in the public domain you can´t come back and patent them at that point.


Ok, Lance Abramson, thank you very much for coming in this morning. Intellectual property the topic with Spoor & Fisher. You’re on Classic FM.

Thank you, Tony.

Lance Abramson
Spoor & Fisher

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