Abstract
LL. M. (Intellectual Property Law)
Throughout the history of mankind and the countless ages in which law has found a voice, there
has existed a need to achieve and maintain a balance between conflicting interests. In this everchanging
and dynamic society the need for a balance is paramount. Although it may seem that
the various conflicting interests are predominately of a private nature, many of these conflicting
interests have consequences that have a salient impact on social welfare. One such branch of the
law in which conflicting interests between various interested parties surface is patent law, and
the controversial issue of software programs.
The current socio-economic environment has experienced exponential technological growth,
with substantial advancements not only in the field of hardware but also in the field of software.
However, this same rapid growth is not always true when it comes to the law which, in certain
fields may be remarked to unfortunately be lagging behind in the degree of protection it affords.
The consequences of this may be dire in the case of technological developments, for it is the
protection afforded that is in part responsible for the advancements in technology.
This once again draws into account the fine line in the balance of rights between various
conflicting interests, namely the protection of an individual’s creativity versus that of social
welfare. In certain cases, regardless of how innovative or unique certain discoveries or
developments may be, if they are important to the social welfare, then an individual’s rights or
need for protection must give way. Having said this, one needs to evaluate where software
programs fall within this delicate balance of rights.
The legal position with regard to software programs in South African intellectual property law is
found within the legislation. Namely, the protection afforded to software programs in the
Copyright Act,1 and the exclusion of protection in the Patents Act.2 In light of this, why software
programs are expressly excluded from protection in the Patents Act will be analysed. It will also
be determined if, and to what extent, the Patents Act can be said to afford protection to software