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7 October 2015
During the last few years, there has been a staggering growth in the number of mobile applications (‘apps’) that have become available for download in leading app stores, and there is no sign of this trend slowing down anytime soon. The question that all developers face is whether it is possible to protect the underlying concept(s) of my newly developed app, or any other computer program for that matter and if so, how do I go about protecting same?
In terms of South African copyright law, computer programs (including apps) as such qualify for copyright protection. Therefore, as soon as an original computer program is reduced to a material form, it is automatically protected by way of copyright. Unfortunately, copyright protection only extends to the particular embodiment of the source code and layout on the screen of a mobile device, and will not afford any protection against copying of the concept(s) on which the computer program is based. The result is that in very few instances copyright would afford a computer program sufficient protection.
So, if it turns out that copyright does not provide an app with the desired degree of protection, is there another option that developers could look into in order to protect their apps? The answer to this question could be a patent. According to South African patent law, any invention is patentable in general if it is new, involves an inventive step and is useful in trade, industry and agriculture. Although our Patents Act (‘the Act’) does not define what an invention is, it at least provides a list of items that are not regarded as patentable. One of the listed items is a “program for a computer”. Fortunately, the Act states further that the list of items is unpatentable “only to the extent to which a patent or an application for a patent relates to that thing as such”. The reason for listing computer programs as such might well be for the fact that they are the subject of copyright protection.
Our South African courts have unfortunately not yet been asked to adjudicate on the patentability of computer-implemented inventions. However, the European Patent Convention, which deals with the granting of European patents, includes a similar exclusion relating to computer programs, and there has been a significant amount of case law in Europe in this regard. The approach that the European Patent Office follows, and which should be followed in South Africa, is that computer-implemented inventions, as with all inventions, are patentable only if they have technical character, are new and involve an inventive technical contribution to the prior art.
Therefore, once a new app has been developed, it is advisable to approach and obtain the inputs of a patent attorney as soon as possible and before the app is disclosed to the public. Otherwise, if it later turns out that the app is of a technical character and has a unique functionality and no patent application was filed in respect of same, the developer would not be in a position to prevent others from developing another app performing a similar function.