We specialise in protecting and enforcing ip rights in south africa and africa. Microsoft, novell and others mafiaa enters the united states government, pro patents lobbyists also. 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.
In terms of the south african patents act, individuals may file their own provisional patent. Aug 04, 2017 national registration is the only method possible in south africa, the top patent office in africa, which is neither a member of aripo nor a member of oapi. South african developers constantly run the risk of breaching the everincreasing number of software patents in the country, most of which are held by global corporations. South african national anthem for android free download. Is a sale of software, ipr or patent considered a capital. South africa currently faces a stark choice between protecting and incentivizing innovation and stymying lifesaving therapeutic breakthroughs. Burrells south african patent and design law lexisnexis sa. Why intellectual property for software is important. In south africa, patenting is regulated by the south african patent act 57 of 1978 in term of which the companies and intellectual property registration office cipro is the custodian of all patent applications. Patent searchinformation support south africa the patent. Software patents in south africa to be or not to be. This treaty allows an individual to file an international application as well as a national application. Although this sounds fairly straight forward, there are some major potholes that you must beware of as a south african software developer, and this article aims to give you the idiomatic 101.
Processes or methods for producing a results, gadgets nonelectronic, electronic, electrical, mechanical, machines, manufactured articles, new. Patents protect the underlying invention of an article. Frasermoleketi, south african minister, slams ooxml and software patents. Microsoft has been granted over 300 patents in south africa, most of which are for software. The patent office takes precautions to maintain confidentiality but can not be held responsible for what occurs outside the office. In addition to the above two tests, the south african patents act specifically excludes certain. Microsoft is, unsurprisingly, one of the main registrants of software. It is worth noting that certain inventions are not patentable under the south african patent. In the event of a conflict between national patent law and the constitution of the republic of south africa, the constitution as interpreted periodically by the south african constitutional court will prevail. To simply and affordably get a patent pending number for your software app, file your software specification through iptica patent pending number.
Jun 20, 2011 a software patent often provides a startup company with the traction to build their businesses as real competitors within the international arena. Software patents in south africa the patenting of south african software is the subject of much heated debate. This is an uncertain and highly debated area in our law. The south african patents act specifically excludes certain subject matter from being patentable. South africa is one of 148 countries that is a member of the patent cooperation treaty pct.
How to protect your intellectual property sme south africa. A patent search is conducted to ensure that no existing patents are being infringed and that the invention is newnovel s25 of patent act. Microsoft has begun patent trolling in sa, novell skeptic responds software patents in south africa. Complete patents must be signed and filed by a patent attorney. This means that a patent application must be filed in each countryregion where protection is sought. Theo qualified as a chemical engineer when he obtained a bachelor of engineering chemistry degree at the north west university, south africa. The exact criteria for patentability vary between countries, and vary within countries by whether you look at patent office granting or court rulings, but the theories behind the general criteria are quite similar around the world. South africa has the 2nd largest economy in africa. A patent specification is a document describing the invention in detail, often accompanied by drawings which help to explain it. May 31, 2011 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. He is a practicing attorney of the high court of south africa and a registered south african patent attorney. Sas patent system is failing to encourage innovation. Do you really need a patent for your software related invention.
Further, because of an increasing number of patents being granted in other countries for inventions that are excluded in terms of the south african patents act such as software and business methods, a. The south african patents act 1978, section 2510 states that an invention will be considered inventive if it is not obvious to a person skilled in the art at the time the invention was made. Jan 03, 20 me and my wife have been developping few software packages for years. South africa must take lead from nz on software patents. Design patent in south africa international patent services.
Term for filing a patent application in south africa. As south africans we love standing around the fire talking about our great ideas that is going to change the world and make us millions. This despite a patent act which precludes software from being patented. The publication has been indispensable to patent attorneys, agents and students. Inventors struggle to protect patents in africa reuters. 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. South africa patent and pct filings, trade mark registrations in south africa. Jun 27, 2011 the patenting of south african software is the subject of much heated debate.
Intellectual property for software is computer code or software protected by law under either a, trademark, trade secret, or software patent. Software patents in south africa mybroadband forum. Intellectual property law news in south africa golegal. More articles about software patents in south africa can be found under.
The south african patents act of 1978 currently excludes a program for a computer from patentability. In south africa, a program for a computer is excluded from recognition as an invention by section 252 of the patents act. South africa has an unusual nonexamination system regarding the approval of patent applications. Patent laws and regulations south africa covers common issues in patent laws and regulations including enforcement, amendment, licensing, term extension. Geraldine frasermoleketi, the previous minister for public service.
We assist you with the requirements for filing a convention, nonconvention and pct national phase application in south africa. Software patents computer program inventions patent attorneys. The patenting of south african software is the subject of much heated debate. Criteria for patentability software patents wiki en. Their standard patents are thus similar to the utility models and innovation patents available in other countries. The developed invention need not form part of a patent application, but must be protectable by way of a patent. Bagnall is incredibly solid, experienced and bright one of the top litigators in south africa. However, this exclusion applies only to the extent to which a patent or an. South african owners of trademarks designs or their trademark patent attorneys may now file corresponding south african trademarks and designs online. South africa does not permit the patenting of software, but microsoft andor novell have ignored the law. Does the software produce a useful, concrete and tangible result. Although this initial search is not compulsory it is advisable.
However, this exclusion applies only to the extent to which a patent or an application for a patent relates to software. In terms of the south african patent act 57 of 1978, the companies and intellectual property commission cipc is the custodian of all new patent applications that are filed within the republic of south africa. Patent searchinformation support south africa 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. Jun 23, 2017 the justification lies on the rule contained on no. While the concept has never having been examined by our judicial system, software patent applications are being granted by our patent office. Register a patent with the companies and intellectual property commission cipc to prevent other people from making, using, exercising, disposing of or importing your invention without your permission. Microsoft has begun patent trolling in sa, novell skeptic responds. Patent registration in south africa ip guide ip coster. Fees associated with filing a patent application in south africa as well as other patent fees are available in the fee calculator. South african patent law protects the patent holder for twenty years from the first registration of the patent, providing that the patent is renewed annually.
Since its 2011 launch, the coalition has grown to include 31 patient groups and organisations who have witnessed firsthand how shortcomings in south africa s patent. Term for filing a patent application in south africa 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 is one of 148 countries that is a member of the patent. This article does not attempt to clarify all the questions and uncertainties surrounding software patents but rather provide five tips or suggestions which should be kept in mind when considering patent protection of software related inventions. The evolution of software patents in europe inventa. A patent is an exclusive right granted for an invention.
And until clarity is achieved in south african patent law these companies will continue applying for software patents and the cipro patent. Patents 2020 laws and regulations south africa iclg. South africa 2016 intellectual property office is an operating name of the patent office this is an independent report commissioned by the intellectual property office ipo. The south african constitution already protects intellectual property rights ipr from arbitrary deprivation and in recent decades, south africa. Is it is a capital gane, can we sale those in our private capacity. In south africa an application for a patent can be supported either by a provisional or by a complete patent specification. Sas patents landscape is characterised by easy patent grants to local individuals and bodies, as well as patents of dubious quality and value. South african patent protection is still possible where public disclosure can be considered a reasonable technical trial. Does the software produce a useful, concrete and tangible. All applications are filed and prosecuted to grant by registered south african patent.
Patentweb south africa unconventionally professional. The problems with software patents part 1 of 3 eric goldman former contributor. This topic contains articles which examine intellectual property legislation and the latest regulatory and judicial developments concerning the ownership and infringements of patents. Some specifics will be found on pages about each patent. The law is the best way to protect material such as software. Is a sale of software, ipr or patent considered a capital gain. This is largely incorrect, and is based on an uncritical reading of the south african patents act. If so, the result must be more than a mere abstract idea. Burrells south african patent and design law provides a critical account of south african patent law and discusses the practical and legal. Is the sale of the software andor ipr andor a patent considered a capital gain.
The patent law prevents others from making, using, exercising, or disposing of the invention in question. Patent barriers to medicine access in south africa. Of these, 608 were filed by residents, the rest were by foreign applicants, according to wipo statistics. Artistic creations are covered by laws, which protect works such as books, films, music, paintings, photographs and software and give the. Most countries place some limits on the patenting of inventions involving software, but there is no one legal definition of a software patent. Complete south african patent applications require filing and signature by a local patent attorney. Africa s own production and innovation of geographically unique products such as south african s ubuntu software. A muchpublicised patent dispute has shone a spotlight on patents, and particularly the issue of software patent. South africa s ip office, for example, received 7,444 patent applications in 2012. May 31, 2011 officially, you cannot patent software in south africa. Note that protecting valuable designs is a crucial part of the. He is a patent and intellectual property law attorney. Jul 17, 2014 south africas ip office, for example, received 7,444 patent applications in 2012. 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.
Within european union member states, the epo and other national patent offices have issued many patents for inventions involving software since the european patent convention epc came into force in the late 1970s. Under the patent law the invention must be completely new. The invention must be novel and have an inventive step and be usable in trade, industry or agriculture. While the concept has never been examined by the judicial system, software patent applications are being granted by the patent office. Our charge to prepare and file a south african complete patent application is r11,950 excl. There has unfortunately not been any case law to provide us with guidance regarding the patentability of softwareimplemented inventions in south africa. Unlike patents, trade marks or designs, there is no need for you to register for protection.
Opinions expressed by forbes contributors are their own. International patent protection it is important to note that patents are territorial rights a patent granted in south africa can be enforced in south africa only. South africa is a country on the southernmost tip of the african continent. Microsoft has been granted over 300 patents in south africa, most of which are for software ideas. The south african patents act excludes computer programs as such from the definition of inventions, says aalia manie a partner in the technology, media. Frasermoleketi, south african minister, slams ooxml and 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.
Because south africa is a nonexamining country, cipro has no responsibility for examining and establishing the novelty or. So almost every software patent is really just prior art, with slight modification. An individual can privately file a provisional patent application. The patent was granted on august 17, 1966 and seems to be one of the first software patents. 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. Yes the software package has been sold to the client for its sole use via our own ccsa company, but without the right to resale without ipr. I still generally advise software startups to file a patent as a barrier to entry from competitors and to increase their valuation by investors, but every entrepreneur needs to understand. Software innovation is valuable to individuals, startups, and businesses. In addition, the dispute has also drawn attention to other issues such as trade secrets, the misuse of confidential information and unlawful.
Industrial designs refer only to the ornamental or aesthetic aspects of a product, add an important value to it. Jun 03, 2011 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. South african law is fairly clear that software in the form of computer programs cannot be patented. Oct 10, 2016 this work is indisputably the leading textbook on patent legislation in south africa. In south africa, patents are regulated by the patents act no.
Apr 23, 2014 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. That being said, the south african patent office is a nonexamining one, which means that if a complete patent application is filed and all the formalities are complied with, a patent will be. A muchpublicised patent dispute has shone a spotlight on patents, and particularly the issue of software patent protection. The debate in sa has been fuelled by recent developments in the european union eu with regard to software patentability. The patent law in south africa requires that an invention meets three important conditions. However, you may, within 12 months software patents historically. The depth of the firms roster of elite patent litigators is a key distinguishing feature.
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