Software patent

We are always surprised at how many people spend so much money filing software patents that are invalid.

For helpful tips on protecting Software Apps, see Iptica’s website ‐ get Patent, Design and Trademark Pending Numbers for only US$99. Also see our easy DIY provisional patent drafting and filing guide.

Software patents in South Africa

According to our Patents Act:

anything which consists of a program for a computer shall not be an invention for the purposes of this Act … [this provision] 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.

So what does this mean? (the wording is not exactly elegant)

Let’s take an example: A software developer wishes to patent an app that downloads the weather forecast for the day and suggests whether you should take a jersey or umbrella to work.

Historically many patent attorneys felt uncomfortable filing a patent for such an “app”. They were right. But, instead of leaving it there, a few patent attorneys suggested patenting a computer / cellphone that runs the app. Their argument being that this patent would be directed at a “computer / cellphone” and not at (potentially offending) “software”.


Toolbox combination patent
Other South African patent attorneys regularly turn to European / US law for guidance. But is this relevant?

Software patents in Europe

In terms of European Patent Law, for software to be patentable, the applicant must show:

further technical effect that goes beyond the normal technical interaction between the hardware and software.

It excludes purely mathematical algorithms. But could include software that:

  • reduces memory;
  • speeds-up processing;
  • results in better control over something physical; or
  • improves reception / decoding of a radio signal

In short, one should ask: is there a non-obvious “technical contribution” / does it solve a “technical problem” in a non-obvious way?

Did our weather app go far enough? No.

But, did Amazon not register the “one-click-buy” patent in the US? This also lacks much umph.

Software patents in the US

Until recently, the US Patent Office merely asked:

Does it produce a useful, concrete and tangible result?

ok, while you’re at it, why not …

Software patentSoftware 2 patentSoftware 3 patent
Fortunately, recent US Supreme Court decisions have brought sanity back to US software patents.

Now, when evaluating US software patents, examiners must:

  • determine whether the claim is directed at an “abstract idea”. If so …
  • determine whether any element in the claim amounts to “significantly more” than the abstract idea itself.

In other words, merely “implementing an idea with a computer” is not patentable. The software must result in improvements to another technology / technical field / the functioning of the computer itself.

This is now very similar to the European position. The common concentrated focus is on a “technical effect”.

To simply and affordably get a Patent Pending Number for your software / app, file your software specification through Iptica Patent Pending Number. For only US$99, you can mark your software “Patent Pending” in 177 countries. Next step: file a complete patent in 12 months time.

Our simple position is: If software merely does “software stuff”, don’t waste your money patenting it.

So, how do you protect software / cellphone apps?

If your software is still secret, you can require each person you disclose it to (e.g. software developers) to sign a confidentiality undertaking. This should prevent them from “stealing” your idea.

Consider FACEBOOK, AUTOTRADER, AMAZON, MICROSOFT WORD – the general concepts are not patented. These website rely on trademarks to prevent competitors from using a confusingly similar name / domain. For R4,090 plus vat, you can obtain similar trademark protection.

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Intangible Consulting (Pty) Ltd
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South Africa

T +27 (0)11 483 1439
T +27 (0)11 483 3128 (alt.)