While the recent legal battles between Samsung and Apple in the US may seem like a world away and of only passing interest to South African technology companies, Tarryn Riley, a patent attorney at ENS (Edward Nathan Sonnenbergs) believes we should all stand up and take notice of how the underlying issues affect the technology patent landscape not only in the US but also closer to home.
“The recent ruling of the International Trade Commission (ITC) in Samsung vs Apple seems to be indicative of a growing trend in the ongoing debate surrounding patent protection for software and computer-implemented technology in the United States,” she states.
In what some considered to be a surprising turn of events, a full panel of the Commission overruled an earlier decision in favour of Apple and found that the software giant had, in fact, infringed certain claims of a patent owned by Samsung that involves the ability of devices to transmit multiple services simultaneously through 3G wireless technology.
The Commission rejected Apple’s defence that Samsung was in violation of its FRAND licensing obligations by demanding unreasonably high royalties. It subsequently imposed a 60 day ban on the sale and importation of certain Apple products in the US, including the iPhone 4, iPhone 3GS, IPad 3G and IPad 2 3G distributed by AT&T.
President Obama is entitled to veto the decision within the preliminary 60 day ban period. In this regard, the ruling coincides with a statement issued recently by the White House urging the ITC to raise the bar for sales bans on infringement of industry essential patents to match district courts and to rather impose monetary charges where possible.
However, Obama’s recently declared war on patent trolls in a bid to protect tech development means that it is anyone’s guess whether he will use his powers to veto the decision.
Why SA companies must take notice
“Just how recent developments in the US will ultimately affect technology companies and the patent law landscape in South Africa remains to be seen,” says Riley. “Currently, the South African approach to the protection of software and computer-implemented inventions largely mirrors the United Kingdom’s approach which affords protection to such software-related inventions that evidence a ‘technical effect’.
“It seems that until such time as the Court has occasion to rule in such a matter, the exact scope of patent protection affordable for computer-implemented inventions in South Africa will remain a grey area.”
Riley explains that, with regard to the safeguarding of innovation in South Africa, the Patents Act 57 1978 does contain certain provisions relating to compulsory licensing arrangements. Where, for example, it is not possible to work a patent without infringing a prior patent, the Commissioner of Patents may issue a compulsory licence to the proprietor of the dependent patent in situations where agreement cannot be reached and where it can be shown that the invention claimed in the dependent patent involves 'an important technical advance'.
“The Act provides for such a licence to be granted on a cross-licensing basis in terms whereof the owner of the dependent patent is obliged to reciprocate with a licence in favour of the other patentee,” she explains. “The Act also contains provisions for the granting of compulsory licenses where patent rights are deemed abused because, for example, demand for the patented product is not being met or the patented invention is not being worked in the Republic on a commercial scale.
“Once again, our Courts have never had occasion to consider the scope of these provisions and, accordingly, there is no case law to guide industry or patent practitioners in this regard. The vast and ever-increasing body of case law in the US in the software space is shaping the way in which major players are striving to out-manoeuvre each other.”
The question as to how these developments will ultimately affect South African technology innovators remains up in the air for the time being but Riley advises that this is something the industry must keep a close eye on.
© Technews Publishing (Pty) Ltd | All Rights Reserved
printer friendly version