[DMCA-Activists] Fwd: [Patents] Telecoms firms lobbying for Swpats in South Africa

[Seth Johnson]

(Forwarded from Patents list.  Article text pasted below.  -- Seth)

-----Original Message-----
From: James Heald <address@hidden>
Date: Tue, 24 Feb 2004 17:59:44 +0000
Subject: [Patents] Telecoms firms lobbying for Swpats in South Africa

> http://allafrica.com/stories/200402240659.html


SA Software Patents Unprotected


Paul Vecchiatto, ITWeb (Johannesburg)
February 24, 2004 


Cape Town: Protecting SA-developed software, especially for the cellular 
industry, is being frustrated by the inadequacy of the Copyright Act and 
the fact that it cannot be registered in terms of the Patents Act.

This is according to law firm Jan S de Villiers, whose intellectual 
property attorney Tarryn Dixon says the Copyright Act fails to give the 
protection the drafters originally intended, and while better protection 
could be offered in terms of the Patents Act, software cannot strictly 
speaking be patented.

"Unless software developers know they can protect their inventions, the 
incentive to innovate is going to be limited. Our growing mobile 
telecommunications industry is most threatened by this problem. The 
'patentability' of locally developed computer software deserves urgent 
attention from our legislators," Dixon says.

She says it has long been debated whether the protection afforded in 
terms of the Copyright Act adequately protects source code.

EU developments 

The debate in SA has been fuelled by recent developments in the European 
Union (EU) with regard to software patentability. South African patent 
law has been largely modelled on the corresponding British legislation, 
and any noteworthy amendments to patent law as it applies in the EU may 
potentially influence the development of patent law in SA.

"Traditionally, patents for inventions involving software have been 
allowed in Europe, with the European Patent Office having set the 
general standard for such inventions," says Dixon. "The standard 
requires the invention to provide a 'technical solution' to a 'technical 
problem'."

But the situation has been compounded as there is no clear definition of 
what constitutes 'technical', because there have been divergent 
interpretations of the law in a number of EU contracting states. This 
has led to confusion among practitioners and businesses as it undermines 
their ability to make informed decisions regarding the protection of 
their intellectual property.

The big directive 

Dixon says a directive has been proposed to bring harmony to the 
approach to be adopted in the EU.

"The directive is, however, unlikely to be adopted in its current form 
and so a final directive seems to be a long way off. The current draft 
directive includes provisions that ostensibly reduce the scope of patent 
protection in the field of software. The position in the EU at present 
is, therefore, still undecided."

The same difficulties and frustrations experienced by British businesses 
in trying to protect their intellectual property are being experienced 
by South African businesses, with particular reference to the mobile 
communications industry.

"South African business demands clarity and reform of the law regarding 
protection of software and for the moment, the proposed EU directive is 
at centre stage," Dixon says.

US law makes provision for software to be patented.