In recent years there has been a staggering rise in the number of mobile applications ('apps') that are available for download in leading app stores, and this trend shows no sign of slowing down any time soon. The question that all developers face is whether it is possible to protect the underlying concept(s) of a newly developed app – or any other computer program – and if so, how.

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 extends only to the particular embodiment of the source code and layout on the screen of a mobile device, and affords no protection against copying of the concept(s) on which the program is based. Thus, in very few instances will copyright afford a computer program sufficient protection.

If copyright does not provide an app with the desired degree of protection, developers could seek to protect their apps through a patent. According to South African patent law, an invention is generally patentable if it is new, involves an inventive step and is useful in trade, industry and agriculture. Although the Patents Act does not define what constitutes an 'invention', 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 items on the list are unpatentable "only to the extent to which a patent or an application for a patent relates to that thing as such". The reason why computer programs may be listed could well be due to the fact that they are subject to copyright protection.

The South African courts have not yet been asked to adjudicate on the patentability of computer-implemented inventions. However, the European Patent Convention, which governs the granting of European patents, includes a similar exclusion relating to computer programs and a significant amount of case law has developed 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, like 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 obtain the input 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 unique functionality, but no patent application has been filed, the developer will be unable to prevent others from developing another app that performs a similar function.

For further information please contact Werner van der Merwe at DM Kisch Inc / Intellectual Property by telephone (+27 11 324 3000) or email (wernerv@kisch-ip.com). The DM Kisch Inc / Intellectual Property website can be accessed at www.kisch-ip.com.

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