The Council for Scientific and Industrial Research's Meraka Institute has lashed out at large software organisations for what it regards as the illegal patenting of software locally, and accused them of stifling innovation.
The Meraka open source centre's manager Nhlanhla Mabaso lambasted larger vendors, and particularly Microsoft, at a recent conference.
He emphasised it was not a matter of proprietary versus open source, but rather "big against small", where smaller developers create software that clashes with something already patented by a larger player.
Without the resources to fight a legal battle, the smaller firm will cave in, and the development will be stifled, explained Mabaso.
Not patentable
He points to chapter five, subsection 25 (2) (f) of the Patents Act (number 57 of 1978), which says "a program for a computer" is not patentable - along with such things as discoveries, scientific theories, mathematical methods, literary or artistic work, and schemes and methods for playing games or doing business.
One of the main reasons for the problem, said Mabaso, "is that SA's patent office is not an inspection office," so it will automatically approve patent requests, assuming they do not clash with other patents.
"It's not a case that the patent office is failing to be diligent - there just isn't the capacity [to make sure all applications comply with the law]."
Negative impact
Pria Chetty, attorney at Buys Incorporated, believes an urgent review of the patent office's practices is required.
"SA's reputation for the granting of software patents under the disguise of software inventions impacts negatively on the attractiveness of the country as a location for software research and development," she says.
While the validity of such patents may be contested by instituting legal action before a commissioner of patents, the effort and costs of instituting such are often inhibiting factors, notes Chetty.
"This means that emerging software developers are reluctant to develop software in SA as it may fall within the broad description of a patented software invention and thus expose them to legal liability."
Foreign precedents
Looking abroad for direction, the Aerotel case was perhaps the most important foreign software patent judgement this year, says Chetty. This UK Appeal Court judgement clarified the position under UK law on the patentability of computer programs and business methods.
In this case, Lord Justice Jacob said that, while traditionally the patenting of software would have been rejected by patent offices, there has been a change in perception over the years.
"As the computer age progressed, computers and computer software took on an increasingly central role. Today, computers and computer software are at the forefront of technology. The law in this area is continually changing, and these changes are nearly always in favour of allowing software and business methods to be patented," he said in a review.
The first South African case will no doubt draw from this judgement and the approach of the presiding Lord Justice Jacob, says Chetty.
"The decision ultimately confirmed that computer program-related inventions, which manipulate technical data, are patentable, but computer program inventions which manipulate non-technical data, such as business data, are not patentable," she clarifies.
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