Does fourth industrial revolution call for sui generis form of IP protection?

Introduction
Patent legislation
Comment

Introduction

The so-called 'fourth industrial revolution' is in full swing. Fields such as artificial intelligence (AI) and additive manufacturing (AM) are no longer a thing of the future, but rather an increasing part of everyday life in the form of smart devices, driverless cars and automated assistants – to name a few examples. This revolution is generally centred on a fusion between physical and digital technologies.

However, in this era of unprecedented innovation, it is unclear whether South African IP law is equipped to keep up with the rapid technological developments driving this revolution.

Patent legislation

According to the Patents Act (57/1978) and the Patent Regulations, the South African Patent Office registrar must accept a complete patent application no later than 18 months from the application's filing date. Following an application's acceptance, it must be published within three months from the date on which the registrar delivers the notice of acceptance to the applicant. This constitutes the theoretical timeframe for the patent prosecution process in South Africa from application to grant.

However, this timeframe accounts for a minority of the patent applications filed with the South African Patent Office, where a complete patent application is often preceded by a provisional application. Following a provisional application, a complete application will not be submitted for a further 12 months, thus extending the period from application to grant to up to 30 months. That said, South Africa has one of the shortest patent prosecution timelines due to the fact that its patenting system is depository in nature. In countries such as the United States, India and China, where the substantive examination of patent applications forms part of the prosecution system, the period from application to grant can take more than five years in some cases.

The sluggish nature of international patent prosecution breeds a field which is ill-equipped to provide the necessary protection in a field such as AI, where recent R&D activity has grown exponentially. Irrespective of the associated time-based challenges, there has been a push to obtain patent protection for AI technology, indicated by the number of new patent applications being filed in this regard.

However, the question of patentability of these types of technology cannot be ignored. For example, many jurisdictions, including South Africa, do not deem software, as such, as intrinsically patentable. However, as an alternative, patents are often directed at systems that incorporate hardware and software components. It is then argued that such systems clearly do not entail software "as such" and should consequently be intrinsically patentable.

Despite the potential questions surrounding the patentability and enforceability of software, the filing of related patents has steadily increased in recent years. In particular, patent filing trends in the AM field has recently seen exponential growth. Notably, these patent filing trends mirror the rate of development and uptake in this field of technology. It seems clear that inventors in this field deem patents a worthy pursuit.

Comment

Inventors who are contributing to the fourth industrial revolution still seek avenues to protect the underlying intellectual property vested in their inventions. Further, however effective they may eventually turn out to be, these inventors are still increasingly turning to patents to obtain this protection.

However, the question remains as to what current form of protection is most suitable for protecting the underlying intellectual property in AI technology, software and other fourth industrial revolution technologies. Alternatively, does the field of IP law call for a similar revolution?

For further information please contact Louw Steyn or Dawid Prozesky at KISCH IP by telephone (+27 11 324 3000) or email (louws@kisch-ip.com or dawidp@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.