The computer software patent debate : a double-edged sword?

Abstract

In writing this dissertation, the aim is to investigate the patentability of computer software - whether it is possible and legally advisable to make way for software patents in South Africa. This is an uncertain and highly debated area in our law. Ultimately, this study is aimed at checking the validity of proposed arguments and suggestions emanating from within the computer software patent debate itself. The Patents Act 57 of 1978 only excludes the patenting of computer software ?as such?. As a result, it is left open for interpretation what it is that the legislature meant by the phrase ?as such? and whether indeed computer software can be patented, since we lack case-law to clarify this point of law. Presently, there are arguments that software patents may possibly fall in line with the required growth and development for our country?s economy. The debate also revolves around the issue whether patents are better suited as legal protection for computer software in contrast to the protection offered under the Copyright Act 98 of 1978. This study will therefore be carried out with an aim to determine and recommend the suitable direction which our law should follow in order to have a competitive stance and facilitate economic growth for our country, specifically in the computer software industry.