Based on the above details pertaining to the key attributes of e-commerce business methods used by accommodation SMEs it is possible to present the anatomy of these business methods. It is important to highlight the constituent parts of these methods in this manner as this makes it possible to identify those aspects to which IP protection applies or may be applied to.
As stated in Chapter One, e-commerce business methods are a type of application software. Therefore their basic anatomy is that of software and comprises of three key elements namely the computer program, data bases and documentation. Using this basic characteristic as a starting point and drawing detail from section 2.3 above, the main parts of e- commerce business methods used by accommodation SMEs are:
1. The computer program being the source and object code. The functionality of the method resides in the object code and the algorithm is expressed by the source code. As already, stated the
68 This title is inspired by Lipton‘s subtitle ‗The anatomy of a computer program‘ at
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key functionalities used or provided by accommodation SMEs are search, booking and payment facilities.
2. Preparatory documentation such as illustrations, design or program documentation in the form of flowcharts and ancillary documents such as program manuals. Technical information will be contained in the preparatory documents. The ancillary documents provide instructions on how to use the method but typically do not provide technical information about the method‘s ‗inner workings‘.69
3. The input material such as the accommodation SME‘s electronic database70 of room availability or customer information and
preferences.
4. The output material such as the results of processed input data, for example a list of suitable accommodation.
Elements 3 and 4 will be presented via the method‘s UI on the accommodation SME‘s website.
The e-commerce features that seem to raise IP protection issues are those that relate to search, booking and payment functionalities. This is because these are the core functionalities of e-commerce business
69 Bender (1970) 929.
70 ‗Electronic databases are simply organised collections of data or information in
electronic or digital form from where such data or information may be accessed, reproduced or retracted‘ per Tana Pistorius ‗The protection of electronic
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methods. For example, Mpofu reports that two of his three case studies credit websites with these functionalities as the source of more than 80% of their international clients. 71 The types and level of IP protection of
these aspects will therefore significantly impact on an SME‘s decision whether or not to adopt e-commerce. If an SME cannot secure access to these features on reasonable terms, it may very well choose not to adopt e-commerce. If it decides to adopt e-commerce nonetheless, it is likely that its business will flounder due to its inability to transact with the huge international potential market.
It is thus essential to carefully evaluate the possible forms of IP protection which are available for these core features and other important aspects such as preparatory and ancillary documentation, the UI or website on which the methods are used.
The table below shows the IP protection options which are available for each of these:
Aspect /functionality IP protection
Search, booking and payment Patent, copyright, trade secret UI or Website (text, graphics, effects) Copyright, design
UI or Website (branding) Trademarks, domain name protection
Input data Trade secret, copyright, database right
Output data Copyright, database right
Documentation Copyright, trade secret
Table 4: IP protection of e-commerce business methods
71 Mpofu 15.
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Chapters Three, Four and Five will consider patent, copyright, trademark and trade secret protection. The thesis‘ focal point will the protection of the computer program as it encapsulates the most important element of an e-commerce business method – its core functionality. A major aspect of the consideration of IP protection will involve an examination of whether or not these forms of protection are equitable using the equitable IP model developed in Chapter One as a yardstick.
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Chapter Three: Patents
‗To characterize "1-Click" as an "invention" is a parody… it makes my blood boil.‘1
Patent protection for computer programs generally, and those underlying e-commerce business methods in particular, is both controversial and emotive. Of particular concern to this thesis is the possibility that these patents are disadvantageous to SMEs as both creators and users of e- commerce business methods. Patent protection is much more problematic than other types of IP protection such as copyright because it precludes reverse engineering and independent development of the same computer programs or e-commerce business methods by others.2
This chapter focuses exclusively on the patent protection of computer programs for e-commerce business methods. Patent protection does not extend to the other constituent elements of an e-commerce business method listed in section 2.4 above, namely, preparatory or design documentation, and input or output material.
1 Tim O‘Reilly (February 2000) ‗Open source, patents and O'Reilly‘ Available at
<http://oreilly.com/pub/a/oreilly/ask_tim/2000/amazon_patent.html> (last accessed 13 March 2011).
2 W Cornish, D Llewelyn and T Aplin Intellectual Property: Patents, Copyright,
Trademarks and Allied Rights 7 ed (2010) 8, para 1 -05 (hereafter Cornish et al
Intellectual Property): ‗…patents are the most basic, most valuable, and to competitors, potentially the most dangerous, of all intellectual property- the category that demands to be studied above all others.‘
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This chapter proceeds in five parts. Part 1 (section 3.1) presents a general overview of patent protection and outlines patentability requirements. Part 2 (section 3.2) canvasses restrictive and liberal national approaches to the patenting of computer programs and e-commerce business methods. In particular, it outlines the laws and practices of the EU, the United Kingdom, the United States and South Africa. It also considers second tier patents generally and Australia‘s Innovative Patent System, in particular. Part 3 (section 3.3) focuses on the debate on the patenting of computer programs. It discusses the public interest issues raised by the patenting of computer programs. This is followed by a consideration of the position of SMEs first as creators, then as users, of e-commerce business methods. Part 4 (section 3.4) focuses on the impact of patenting computer programs for e-commerce business methods on accommodation SMEs. Part 5 (section 3.5) concludes the chapter.