Estados Unidos de América

Sudáfrica

Patentes (incluida la protección de variedades vegetales)

1. Article 25 of the South African Patent Law states that "computer programs" shall not be an invention for the purposes of the South African Patent Act. Please explain whether, under this provision, inventions within the categories specified below are not eligible to be patented under South African law, notwithstanding the fact that the invention is novel, involves an inventive step, and is useful: (a) process inventions which, in whole or in part, consist of steps that are performed by a computer and are directed by a computer program; (b) product inventions consisting of elements of a computer implemented invention, including in particular: (i) machine readable computer program code stored on a tangible medium such as a floppy disk, computer hard drive or computer memory; and (ii) a general purpose computer whose novelty over the prior art arises primarily due to its combination with a specific computer program. If any of these types of inventions are excluded from eligibility to be patented, please explain how the South African patent law complies with the obligations of Article 27 of the TRIPS Agreement, which mandates patent eligibility for all categories of invention without discrimination.

It is correct that section 25(2) of the South African Patents Act provides that computer programs shall not constitute inventions for the purposes of the Act. However, section 25(3) provides that subsection (2) shall prevent such a program to be treated as an invention "only to the extent to which a patent or patent application relates to that thing as such". This position is in line with the position in Britain. It is submitted that the instances as set out in question No. 1(a) and (b) from the US could qualify for patent protection in terms of South African law, inasmuch as these instances do not relate to mere computer programs as such. Accordingly, it is submitted that the South African position complies with Article 27 of the TRIPS Agreement, inasmuch as inventions based on or involving computer programs are patentable.