Patents for Computer Programs in Europe and United Kingdom
The United Kingdom Patents Act and the European Patent Convention both have provisions which are substantially identical to those in the South African Patents Act to the effect that a computer program as such is not considered to be a patentable invention. For a long time, this was interpreted as meaning that software related inventions were inherently unpatentable.
More recently, the practice of the European and UK Patent Offices has been to relax the interpretation of this exclusion (see our October 1999 update on this topic).
In a nutshell, it has in the recent past been accepted in Europe and the UK that a computer software related invention which involves a "technical contribution" to the state of the art may well be patentable. However, due to the restriction on the patenting of a computer program as such, the patent claims for such inventions have generally been framed to cover methods, systems, or the like, but not software as such.
Recently, the European Patent Office decided that it was not logical to reject claims to a computer program as such where claims to a computer system programmed with that software, or to the method or process carried out by the software, were allowed. The Technical Board of Appeal of the European Patent Office applied the same requirement for a "technical contribution" and decided that claims either to the computer program itself or the program embodied as a record on a carrier (such as a disc) should be acceptable.
In the light of this decision, the UK Patent Office has issued a Practice Notice announcing that it will adopt the same practice, stating:
"... the Patent Office´s practice will in future be to accept claims to computer programs, either themselves or on a carrier, provided that the program is such that when run on a computer it produces a technical effect which is more than would be necessarily follow merely from the running of any program on a computer and which is such that claims to the computer when programmed would not be rejected ... under the existing practice."
This is a very important development, for two reasons. Firstly, it expands the scope of patent protection that is available in Europe and the United Kingdom, two territories of prime interest to prospective patentees. Secondly, in the South African context, we believe that due to the strong similarity between the European and United Kingdom legislation and the South African Patents Act, the abovementioned approach should be found strongly persuasive by our courts in interpreting the restriction on patentability of computer software, so that there is at least a strong likelihood that computer software as such might well be patentable in South Africa after all.
It should be emphasised that there can be no certainty on this latter point until our courts have pronounced on the matter, but it is to be hoped that the South African courts will follow the United Kingdom and European approach in this regard.
Spoor & Fisher