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De Kock Attorneys © June 2010
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Patents - Introduction

What is a patent?
A patent generally refers to the exclusive right granted to the patent owner in respect of an invention relating to a new product, process or technical solution described in the patent document.

What is patentable?
Generally, any "invention" may be protected by a patent, if it meets the following requirements:
  • The invention must be new
  • It must involve an inventive step
  • It must be capable of being used or applied in trade or industry
How do you determine whether your invention is new?
The requirement that the invention must be "new" means that it must be "new" in the world and not only in South Africa. The invention must furthermore be undisclosed to members of the public and if it is disclosed to someone that person must be bound by a confidentiality agreement, unless that person is a co-inventor. However, there may be some instances, where disclosure of an invention, for instance, in some technical trials, where the disclosure of the invention will not destroy novelty of the invention.
 
Is it necessary to conduct searches?
Although possible, it is not compulsory to conduct novelty searches before filing a patent application. However, if you suspect that your invention is similar to existing patents or incorporate parts of products or solutions which already exist in the market place, a search may be a good idea to ascertain which part of you invention, if any, would be patentable.

In order to determine the novelty of an invention, searches can be made in a number of ways. In this regard, you could consider instructing searches of the records at the South African Patents Office. However, the scope of this type of search is limited as it will only cover patents for similar inventions filed in South Africa.

Preliminary international novelty searches could furthermore be considered on international online databases. These searches, however, are also not conclusive and can be very costly. To get an idea of the main concepts and role players, searches could inter alia be conducted at the US Patents Office or European Patents Office which can be accessed online at the following addresses: http://www.uspto.gov or http://ep.espacenet.com.

What is not patentable?
In terms of Section 25(2) of the current Patents Act anything which consists of the following, is not an "invention" for purpose of the Act:
  • a discovery
  • a scientific theory
  • a mathematical method
  • a scheme
  • rule or method for performing a mental act
  • playing a game or doing business
  • a program for a computer
  • the presentation of information
However, even if a proposed item falls within the general descriptions of the above listed items, there may still be reasons why it may be recommended to file a patent application. It is best to consult with a patent attorney to explore possible patentable aspects of an invention before disclosing it to the public.
 
What area is covered by a South African patent registration?
A patent granted in the Republic of South Africa would only cover the nine provinces of South Africa. If you wish to extend patent protection to other countries, separate patent protection must be obtained in each country.
There are several regional groupings of countries in Africa and in Europe, and it is possible to file a regional patent application designating some or all of the countries in a region.
It is also possible to file a single PCT application in terms of the Patent Cooperation Treaty and to designate any or all 124 member countries worldwide (this number is growing from year to year). South Africa became bound by the PCT on 16 March 1999.


What is the procedure?
To obtain a patent registration, involves the following two steps:
  • Applying for registration: Application for registration can be done in three different ways, namely by filing a provisional patent application, a complete application or a PCT (Patent Co-Operation Treaty) application. In case of a provisional patent application, a complete or PCT patent application must be submitted within 12 months from the date of filing the provisional application. During this period, the inventor is afforded time to refine or test its invention or find sponsors. Consideration should also be given to applying for patent protection in other countries.
     
  • Obtaining registration: Once a complete or PCT application is filed, formal examination commences. The patent application is accepted, if all formalities have been complied with. As soon as the applicant receives confirmation that a patent is accepted, it must be advertised in the Patent Journal for possible oppositions by third parties. If no objections are raised within 3 months, the Registrar of Patents will issue a Patent Certificate.
     
Term of monopoly:
The term of a South African patent granted is 20 years from the date on which the complete specification is lodged at the Patent Office, subject to the payment of the prescribed renewal fees.

Need further advice?
The comments above are general remarks. Please do not hesitate to contact us with instructions, if you require expert advice or assistance with patent registrations.
 


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