De Kock Attorneys Patents

Patents Introduction

What is a patent?
A patent generally refers to an exclusive right granted to a patent owner in respect of an invention. The invention may be a new and inventive product, article, system, process or method involving a technical solution described in patent.

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 are some instances, where disclosure of an invention, for instance, reasonable technical trials, 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, albeit, not conclusive as to the novelty of the idea/concept/invention, do provide useful information as to which aspects of your idea/concept/invention may perhaps be patentable in light of prior art documents uncovered during the Fixed budget novelty search.

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?
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 application need to be applied for in all countries where patent protection is required.

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 148 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, involves the following two steps:

  • Applying for a patent: Application for grant of a patent can be done in three different ways, namely by filing a provisional patent application in South Africa, a complete application in South Africa, a foreign application in a foreign country where patent protection is sought or a PCT (Patent Co-Operation Treaty) application. In case of a provisional patent application, a South African complete, foreign 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 his invention or find investors or sponsors.
  • Obtaining grant of a Patent: 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, the notice of acceptance is advertised in the Patent Journal. A patent is deemed to be granted, upon advertisement of Notice of Acceptance in the Patent Journal. The Registrar of Patents will issue a Patent Certificate in due course after grant of the patent.

Term of monopoly:
The term of a South African patent is 20 years from the date on which the complete specification was 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 applications.

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