What Can Be Patented in South Africa?

In South Africa, a patentable invention must be a manner of manufacture that is new, involves an inventive step, and is capable of being used or applied in trade or industry, all as set out in the Patents Act 57 of 1978. Section 25 of the Act lists the categories that are not patentable — discoveries, scientific theories, mathematical methods, schemes for doing business or playing games, mental acts, methods of medical treatment, diagnostic methods practised on humans or animals, essentially biological processes for the production of plants or animals, and anything contrary to public order or morality. So a searcher asking what can be patented is really asking two questions: does the subject matter clear the positive four-part test, and does it avoid the exclusion list? The application itself is filed at the Companies and Intellectual Property Commission (CIPC) in Pretoria, with a provisional specification filed first to establish a priority date and a complete specification filed within twelve months if the applicant intends to proceed.

The Patentability Test in South Africa

South African patent law requires an invention to satisfy four cumulative requirements before it can be granted. All four must be met — failure on any one disqualifies the application, regardless of how strong the others are.

Requirement	What it means in practice
Manner of manufacture	The doctrinal gateway. South African courts read this broadly, accepting computer-implemented inventions and business-method-related inventions where the substance produces a tangible technical effect or commercial result.
Novelty	The invention must be new. It is assessed against the global state of the art — anything published, used, or otherwise made available anywhere in the world before the priority date anticipates the invention.
Inventive step	The invention must not be obvious to a person skilled in the relevant art, having regard to the prior art as it stood before the priority date.
Industrial application	The invention must be capable of being made or used in some kind of industry, including agriculture.

The “manner of manufacture” requirement is the most-litigated of the four. It is the test South African courts use to keep abstract ideas, pure algorithms, and disembodied business schemes out of the patent system, while still permitting genuinely technical implementations even when they involve software or data-processing steps.

What Cannot Be Patented (Section 25 Exclusions)

Section 25 of the Patents Act 57 of 1978 sets out a closed list of subject matter that is excluded from patentability, even if the invention is novel, non-obvious, and industrially applicable. The exclusions are:

• Discoveries, scientific theories, and mathematical methods as such.
• Schemes, rules, or methods for performing mental acts, doing business, or playing games.
• Methods of treatment of humans or animals, including diagnostic methods practised on humans or animals — products used in those methods are not themselves excluded.
• Essentially biological processes for the production of plants or animals (other than microbiological processes and the products of those processes).
• Presentations of information as such.
• Anything the publication or exploitation of which would be contrary to public order or morality.

Two points worth flagging for South African applicants specifically:

• Software is not excluded “as such” by name. Unlike some other patent systems, the Patents Act does not list “computer programs” in section 25. The result is that software-related inventions must still clear the manner-of-manufacture hurdle and the substantive novelty/inventive-step bar — they are not shut out at the door by the wording, but they are filtered through the same four-part test.
• Plant varieties are dealt with separately. Plant varieties fall under the Plant Breeders’ Rights Act 15 of 1976, not the Patents Act, and have their own registration system at the Department of Agriculture.

Examples of What Is Normally Patentable

The following categories typically satisfy the four-part test in practice:

• A new mechanical device or machine with a concrete technical effect.
• A novel chemical compound or pharmaceutical formulation (subject to separate regulatory approval before the product can be marketed).
• A new manufacturing process or manufacturing apparatus.
• A biotech invention that meets the manner-of-manufacture threshold and is not excluded as an essentially biological process.
• A computer-implemented invention that produces a technical effect beyond the abstract execution of an algorithm.

Examples of What Is Normally Not Patentable

The following categories typically fail the four-part test or fall within the section 25 exclusion list:

• A bare algorithm or mathematical formula, divorced from a technical application.
• A business method as such, with no technical implementation.
• A new diet regimen or a method of medical treatment of a human patient.
• A discovery of a naturally occurring substance with no claimed technical application.
• A scientific theory or law of nature.

The Filing Process at the CIPC

Patent prosecution in South Africa follows a defined sequence of stages administered by the CIPC. The applicant (or, in practice, the applicant’s registered patent attorney) drives each step.

Stage	What happens
1. Provisional application	Filed first to establish a priority date. Provides a 12-month window in which the invention is protected, but is not examined.
2. Complete application	Must be filed within 12 months of the provisional, with a full description, claims, and (where required) abstract.
3. Request for examination	The applicant must formally request examination; the patent is not examined unless requested.
4. Substantive examination	A registered patent examiner examines the application against the Patents Act and the state of the art; objections are raised on the official examination report.
5. Amendment and response	The applicant is given the opportunity to amend the claims and argue against the objections.
6. Acceptance and grant	Once accepted, the patent is granted and published; the CIPC issues the letters patent.

South Africa historically operated without a pre-grant opposition procedure — any third-party challenge to a granted patent is brought after grant. A granted South African patent lasts 20 years from the date of application, subject to the payment of renewal fees from the end of the third year. Current renewal fees and processing turnaround times are published by the CIPC and should be verified directly at the CIPC’s IP Online portal before filing.

Why Engaging a Patent Attorney Matters

Only a registered South African patent attorney may represent an applicant in matters before the CIPC. A foreign applicant must appoint a local patent attorney as agent. The substantive risks in patent prosecution are real:

• Patent drafting is claim-driven — the claims define the scope of protection, and small drafting choices can mean the difference between broad and narrow protection.
• A wrong priority date, a missed novelty deadline, or an inadequate specification can be fatal to the application.
• The 12-month provisional-to-complete deadline is strict — missing it forfeits the priority date.

International applicants should also consider the Patent Cooperation Treaty (PCT) route, which South Africa has acceded to, and the Paris Convention priority framework — both of which allow a local patent attorney to manage the South African national-phase filing in coordination with the applicant’s overseas prosecution strategy. For an applicant anywhere in Gauteng, the practical reality is that the local lodging and prosecution work is done in Pretoria, with hearings and correspondence going through the CIPC’s offices.

Frequently Asked Questions

Can I patent a computer program in South Africa?

A computer program as such is not patentable in South Africa, but a computer-implemented invention that produces a technical effect beyond the abstract execution of an algorithm can be patentable. The application must still clear the manner-of-manufacture threshold and the novelty and inventive-step bar.

Can I patent a business method in South Africa?

A business method as such is excluded under section 25 of the Patents Act 57 of 1978. If the business method is tied to a technical implementation with a tangible technical effect, the patent may be granted on the technical implementation rather than the abstract method itself.

Can I patent a method of medical treatment?

No. Methods of treatment of humans or animals are excluded by section 25 of the Patents Act, as are diagnostic methods practised on the human or animal body. Products used in those methods, such as a new pharmaceutical compound, can still be patented on their own.

How long does a South African patent last?

A South African patent lasts 20 years from the date of application, subject to the payment of renewal fees from the end of the third year.

Do I need a patent attorney to file in South Africa?

Yes. Only a registered South African patent attorney may represent an applicant in matters before the CIPC. A foreign applicant must appoint a local patent attorney as agent.

What is the difference between a provisional and a complete patent application?

A provisional application establishes a priority date and gives the applicant 12 months to file a complete application. It is not examined on filing. A complete application contains the full specification, claims, and (where applicable) abstract, and is the application that is examined for grant. The 12-month window is strict — missing it forfeits the priority date.

If you have an invention and want to know whether it is patentable, or you are ready to file a provisional or complete patent application, Burger Huyser Attorneys’ intellectual property practice — led by specialist consultant Stefaans Gerber (Patent & Trademark Attorney) — assists South African applicants with patent and trademark prosecution, IP licensing and assignment, and commercial/IP contract drafting. The firm takes instructions via the head office at 49 First Avenue, Linden, Randburg (011 888 0246), and serves clients across Gauteng and nationally. As with the firm’s broader practice, the IP team follows the same plain-spoken, honest-about-prospects approach reflected in the firm’s 4.8/5 average across 250+ Google reviews (Trustindex verified — “Top Rated Law Firm in South Africa”). A short consultation will confirm whether the invention clears the patentability test, what the likely claim scope is, and what the next filing step should be.