South African patent system
Encyclopedia
The South African patent system is the system by which patent
s are granted in South Africa
.
As is the case in many other countries, a patent provides legal protection for a new
and industrially applicable
invention
. This invention, which constitutes either a product or process, has to be brought about as a result of an inventive step
. Essentially, this new product or process has to represent a new way of doing things or has to provide a technical solution to a real life industrial problem. An invention is only considered to be new and based on an inventive step if the same idea has not been expressed in writing, orally or practically, or in any other way, anywhere immediately prior to the priority date
of the invention.
57 of 1978, the Companies and Intellectual Property Registry Office (CIPRO) is the custodian of all new patent application
s that are filed within the Republic of South Africa. An individual can privately file a provisional patent application. However, only a patent attorney
can file a non-provisional patent application and assist in drafting the patent specification; see Patent attorney: South Africa. It is essential that the content of the patent specification - referring to the definition and description of the invention - is clear, coherent and concise so that the patent is assured the maximum protection. Protection is granted for twenty years from the filing date of the non-provisional patent application.
s; and presentation of information. Even if an inventor’s product or process falls within the scope of the excluded categories, patent attorneys may be able to draft the patent specification in such a manner that the invention gets legal protection.
(PCT). This means that South Africans are able to file both national and international applications. This is in line with the supranational recognition of intellectual property restrictions within the context of globalisation.
, e.g. Europe, USA, Japan and Australia. However, South Africa's inventive step requirements differ from some of these countries. Consequently, the International Search Report
and the International Preliminary Examination Report
should be consulted when examining a South African application. This will indicate whether the PCT International Specification as filed and as published should be amended when filing a South African application. Importantly, such a step lessens the possibility that a South African patent, which may be granted on the application, will be deemed invalid on the grounds of lack of inventive step.
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s are granted in South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
.
As is the case in many other countries, a patent provides legal protection for a new
Novelty (patent)
Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application....
and industrially applicable
Industrial applicability
In patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this...
invention
Invention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
. This invention, which constitutes either a product or process, has to be brought about as a result of an inventive step
Inventive step and non-obviousness
The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented....
. Essentially, this new product or process has to represent a new way of doing things or has to provide a technical solution to a real life industrial problem. An invention is only considered to be new and based on an inventive step if the same idea has not been expressed in writing, orally or practically, or in any other way, anywhere immediately prior to the priority date
Priority right
In patent, industrial design rights and trademark laws, a priority right or right of priority is a time-limited right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively...
of the invention.
South African Patent Act and CIPRO
In terms of the South African Patent ActSouth African Statutes and other Legislation
Modern South African legislation reflects South African society's attempt to emerge from the deep bias and prejudice embedded in apartheid legislation, by passing a variety of laws dealing with rights and freedoms enshrined in the Constitution of the Republic of South Africa, and by developing...
57 of 1978, the Companies and Intellectual Property Registry Office (CIPRO) is the custodian of all new patent application
Patent application
A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
s that are filed within the Republic of South Africa. An individual can privately file a provisional patent application. However, only a patent attorney
Patent attorney
A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing an opposition...
can file a non-provisional patent application and assist in drafting the patent specification; see Patent attorney: South Africa. It is essential that the content of the patent specification - referring to the definition and description of the invention - is clear, coherent and concise so that the patent is assured the maximum protection. Protection is granted for twenty years from the filing date of the non-provisional patent application.
Provisional and complete specification
If a South African inventor applies for a patent, the application is accompanied by a provisional or complete specification. A provisional specification is lodged at CIPRO if the inventor is still testing or developing the product or process. The provisional specification affords temporary protection for 12 months, extendible locally for three months, and forms the basis for a complete patent application and foreign patent applications. Once the invention has been fully developed and tested, a fresh patent application, with complete specification, is filed. If the product or process has already been technically finalised from the start, only a complete specification is lodged.Patent search
The responsibility for ensuring that the application is valid resides with the applicant. South Africa is a non-examining country. This means that CIPRO does not investigate the novelty or inventive merit of the invention - only the form or documentation is verified and not the substance of the product or process. For peace of mind, the inventor can make use of the services of a qualified patent attorney to investigate the existence of previous patent specifications that relate to the relevant invention. This procedure, although expensive, may negate possible future litigation procedures and unnecessary financial expenses. It is crucial that an international patent search should be conducted, especially if an inventor wants to commercialise a product or process in foreign countries. The same applies for a patentee, who wants to commercialise an invention and who does not want to infringe someone else’s patent. A search should then be conducted at the South African Patent Office. No online search facilities exist for South African Patents and all searches are carried out by hand at the Patent Office through a card based system, however, electronic patent searches may be performed on a contract basis on proprietary systems such as the Electronic Patent Journal (EPJ).Patentable invention
Section 25 of the South African Patent Act, Act 57 of 1978, specifies that a patentable invention includes new inventions in the fields of trade and industry or agriculture. However, this act excludes: new discoveries; new scientific theories; new mathematical methods; new schemes, rules or methods for performing mental acts, playing games or doing business; new computer programComputer program
A computer program is a sequence of instructions written to perform a specified task with a computer. A computer requires programs to function, typically executing the program's instructions in a central processor. The program has an executable form that the computer can use directly to execute...
s; and presentation of information. Even if an inventor’s product or process falls within the scope of the excluded categories, patent attorneys may be able to draft the patent specification in such a manner that the invention gets legal protection.
Patent Cooperation Treaty
South Africa is a signatory of the Patent Cooperation TreatyPatent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
(PCT). This means that South Africans are able to file both national and international applications. This is in line with the supranational recognition of intellectual property restrictions within the context of globalisation.
International inventive step requirements
South African criteria for originality of an invention are analogous to those of most of the First WorldFirst World
The concept of the First World first originated during the Cold War, where it was used to describe countries that were aligned with the United States. These countries were democratic and capitalistic. After the fall of the Soviet Union and the end of the Cold War, the term "First World" took on a...
, e.g. Europe, USA, Japan and Australia. However, South Africa's inventive step requirements differ from some of these countries. Consequently, the International Search Report
Patent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
and the International Preliminary Examination Report
Patent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
should be consulted when examining a South African application. This will indicate whether the PCT International Specification as filed and as published should be amended when filing a South African application. Importantly, such a step lessens the possibility that a South African patent, which may be granted on the application, will be deemed invalid on the grounds of lack of inventive step.