What is a Patent?
A patent is a document that defines the area of monopoly relating to an invention. The state grants a patentee a 20 year monopoly right in exchange for the full disclosure of the invention by the patentee. Patents are territorial rights and a South African patent is only valid and enforceable in South Africa – there is therefore no such thing as an ‘international or world-wide patent’.
What can be Patented?
An invention is patentable if it is new, involves an inventive step and is capable of being used or applied in trade, industry or agriculture.
An invention is new if it does not form part of the ‘state of the art’ immediately before the application date. In other words, it should not have been made available to the public, anywhere and by any means. The ‘public’ includes the people of South Africa and all other countries. This means that your invention must be kept secret before filing an application to obtain patent rights.
There are invention areas that are specifically excluded for the purposes of patentability by legislation.
The exclusions are: animal or plant varieties; essentially biological process for the production of animals or plants, not being a microbiological process or the product of such a process; a method of treatment of the human or animal body; a discovery; a scientific theory; a mathematical method; a literary, dramatic, musical or artistic work or any other aesthetic creation; a scheme, rule or method for performing a mental act, playing a game or doing business; a program for a computer; or the presentation of information. Inventions that encourage offensive or immoral behaviour, may be used in a manner contrary to law; or are contrary to well established natural laws.
The items listed above may not be absolute and professional advise should be sought regarding permitted patentability of certain embodiments of the exclusions.
Patent Applications in South Africa
We recommend, in the normal course of events, that one first files a provisional patent application. This provisional application affords one a 12 month window wherein the invention may be fine-tuned, tested and market analysis and funding for the project investigated. Most importantly, the filing date of provisional application is the date that you will rely on for your priority claim should you decide to proceed with a complete specification or other foreign jurisdiction application. It is also important to note that one does not obtain an enforceable right with the mere lodgment of a provisional patent application an enforceable right can only be exercised on the grant of a valid complete patent.
12 months after the filing of the provisional application a complete application, PCT or specific foreign jurisdiction patent must be sought.
Patent rights are territorial. Obtaining a granted patent in South Africa gives one the right to prevent any other person from making, using, exercising, disposing of; offering to dispose of or importing a product protected by the patent specification in South Africa. Enforceable rights in foreign countries can only be obtained through the acquirement of granted patents in those countries.
Maintenance of Patent Rights
Renewal fees are payable annually from the 3rd year of the patent’s 20 year life span.
Patent Applications in the Rest of the World
One may acquire patent rights in foreign jurisdictions by applying in a desired country and utilizing the first filing date of the first South African application to claim priority. This must be done within 12 months of the first filing date.
Alternatively, the PCT system may be used to lodge an international application that is used as a basis to enter coutries at a later stage where patent protection is sought.
A valid, granted patent must be obtained before one can sue for infringement of the patent right.
Any person or legal entity that makes, uses, exercises, disposes of, offers to dispose of or imports a protect protected by a patent may be sued for infringement of the patent right.