What Are The Legal Steps in Acquiring a Patent?

Innovation is the foundation of progress, and if you have developed a unique product, obtaining a patent is essential to protect your intellectual property. A patent gives you exclusive rights to your invention, preventing others from making, using, or selling it without your permission. However, the patent process can be complex, requiring careful preparation and legal steps.

What is a Patent?

A patent is a legal right granted by the government that gives an inventor exclusive control over their invention for a certain period—typically 20 years from the filing date. This protection prevents others from using, copying, or selling the patented product without authorization.

Patents are granted for new, useful, and non-obvious inventions and can fall into three categories:

  1. Utility Patents – Cover new processes, machines, manufactured products, or compositions of matter.
  2. Design Patents – Protect the unique appearance or ornamental design of a product.
  3. Plant Patents – Cover new plant varieties that are asexually reproduced.

Step 1: Determine If Your Product is Patentable

Not all products can be patented. To qualify, your invention must meet the following criteria:

  • Novelty: Your product must be new and not previously disclosed or publicly known.
  • Usefulness: The invention must serve a practical purpose or solve a specific problem.
  • Non-Obviousness: Your product cannot be an obvious improvement of existing inventions.

If your product meets these criteria, you can move forward with the patent process.

Step 2: Conduct a Patent Search

Before filing a patent application, conduct a patent search to ensure your invention hasn’t already been patented. Searching existing patents can save time and prevent costly legal disputes.

You can check:

  • The South African Companies and Intellectual Property Commission (CIPC) database
  • The World Intellectual Property Organization (WIPO) database
  • The United States Patent and Trademark Office (USPTO) database
  • The European Patent Office (EPO) database

A thorough search helps confirm your product’s uniqueness and allows you to refine your invention if necessary.

Step 3: Prepare a Detailed Description of Your Product

A strong patent application requires detailed documentation of your invention. This includes:

  • A clear explanation of what your product does and how it works.
  • Technical drawings or diagrams that illustrate your invention’s structure and functionality.
  • Claims that define the invention’s unique aspects and what you are seeking protection for.

Having comprehensive documentation strengthens your application and reduces the chances of rejection.

Step 4: Choose Between a Provisional or Complete Patent Application

In many countries, including South Africa, you have the option to first file a provisional patent application before submitting a complete patent application.

  • Provisional Patent Application:
    • Provides temporary protection for 12 months.
    • Establish an early filing date while you refine your invention.
    • Less expensive than a full patent application.
  • Complete Patent Application:
    • Must be filed within 12 months of the provisional application.
    • Undergoes formal examination before approval.
    • Grants full legal protection for up to 20 years.

Many inventors file a provisional patent first to secure their idea and give themselves time to finalize the details.

Step 5: File Your Patent Application

To officially apply for a patent, you must submit your application to the appropriate patent office.

In South Africa, patents are registered through the CIPC (Companies and Intellectual Property Commission). The steps include:

  1. Create an account on the CIPC online portal (www.cipc.co.za).
  2. Complete the required patent forms (Form P1 for provisional, Form P2 for complete).
  3. Pay the required application fee.
  4. Submit your documentation, including the invention’s description, claims, and drawings.

For international protection, you may need to file through the Patent Cooperation Treaty (PCT) or apply separately in different countries.

Step 6: Patent Examination Process

After submitting your patent application, it undergoes a review process to determine whether it meets patentability requirements. This may involve:

  • Preliminary Examination: Checks if the application is complete and correctly formatted.
  • Substantive Examination: Evaluates the invention’s novelty, usefulness, and non-obviousness.
  • Office Actions: If there are any concerns, the patent office may request clarifications or modifications to your application.

If your patent is approved, it will be granted and published in the official patent journal.

Step 7: Maintaining and Enforcing Your Patent

Once granted, you must maintain your patent by paying renewal fees to keep it active.

  • In South Africa, annual renewal fees apply from the third year after filing.
  • Failure to pay these fees can lead to loss of patent rights.

You also have the legal right to enforce your patent. If someone infringes on your patent by making, selling, or using your product without permission, you can take legal action against them.

How Long Does a Patent Last?

  • Utility Patents: 20 years from the filing date.
  • Design Patents: 15 years from the grant date.
  • Plant Patents: 20 years from the filing date.

After the patent expires, the invention enters the public domain, meaning anyone can use or sell it.

Protecting Your Invention

Obtaining a patent for your product is a crucial step in protecting your intellectual property and securing your competitive edge. While the process can be complex, following the right steps will help ensure a smooth application.

Working with a patent attorney can increase your chances of success by ensuring your application is properly prepared and legally sound.

If you have a unique product and need guidance on securing a patent, Burger Huyser Attorneys can assist you with expert legal advice and patent registration services. Contact us today to safeguard your innovation.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE