By Sudi Wandabusi
A colleague at work came to me with an intellectual property question that I found important to share with you. He asked me whether it is possible to apply for patent registration of a unique software he recently created.
His arguments had me thinking as he was quoting from an earlier article I had written on patentability requirements. "My software meets all the requirements you outlined for patentability of an invention. It is novel, it involved an inventive step and I can demonstrate its industrial applicability. Why then shouldnÌt it be patented?"
This is a debate that has been going on among intellectual property academics for years. The argument deals with the extent to which it should be possible to patent software and computer-implemented inventions as a matter of public policy.
The debate is hinged more on the economics of patenting software. Patents are granted for inventions in a wide variety of industries and indeed, many governments have encouraged patents, seeing it as a sign of economic health. Traditionally, patents have been considered as economic incentives for innovation.
Of course, the flipside has been that patents create exclusive rights that may cause economic monopolies with negative effects for potential competitors, and for society as a whole. But while traditional industrial inventions have been clear-cut when it comes to application for patent protection, a lot of resistance is encountered in applications for software patents.
Software patent
The question that begs an answer has been, is there a fundamental difference between traditional nuts-and-bolts technology and software technology? Are software related inventions really different from traditional industrial inventions?
Proponents of software patent argue that computer programme related inventions are equally important and therefore deserve patent protection.
They have argued that patenting software inventions helps encourage more investment in research and development. After all, the hallmark of patent is the promotion of useful arts and this has helped industrial growth in the word.
Copyright usually protects ‘original expression’ against direct copying. In the case of copyright protection of computer programmes as provided under section 26 of the Copyright Act, it refers only to the originally coded programme, the source code.
But it is not a dispute that goes beyond mere expression. Software developers go to the extent of inventing original ideas, which are outside the scope of copyright protection. Patents, on the other hand, protect inventive ideas that are industrially applicable.
Therefore, in the case of software related invention, a patent shall protect the exclusive right to apply the idea by the inventor.
Once a computer programme is patented, it is possible to invoke the patent even against any independent inventors of the same idea.
This creates a monopoly of the invention that makes it hard for any other person to circumvent. Any person intending to make use of the idea shall only do that with a
Cost
Copyright, on the other hand, cannot prevent independent creators from recreating the same or similar work.
Usually, it is possible to implement a programme’s functionality in different ways, that is, in a different "expression", so the exclusive right provided by copyright law is unlikely to create a monopoly.
But the prohibitive cost and the complicated process of patent application usually puts off many software inventors. Drafting of the patent application requires technical assistance and presently, most patent applications in Kenya have to be done by experts in the US as we donÌt have enough qualified patent drafters locally.
Given the cost and burden of the patent application process, software inventors often refrain from patenting.
In particular, for those inventions that can be hidden in software internals, copyright protection may actually provide sufficient legal protection for underlying inventions as well, saving inventors the need to seek patent protection. If the Ïsource codeÓ of a given computer programme is kept secret, such inventions may be hard to uncover from the ‘object code.’
Arguably, copyright protection of the Ïobject codeÓ layer may constitute an impediment to establishing proof of patent infringement in some cases.
In Kenya, the Kenya Industrial Property Institute is charged with processing patent applications.
However, it is yet to receive any application of software patent by foreign or local software developers.
The writer teaches at Inoorero University-Nairobi
