Intellectual Property Law and Filing Patents

In South Africa, filing a patent is a crucial step for inventors who want to protect their innovative products, ideas, or processes. A patent grants the inventor exclusive rights to their creation, preventing others from making, using, or selling the invention without permission for up to 20 years. However, filing for a patent can be a complex process, requiring careful attention to detail and a solid understanding of South African intellectual property law.

At Burger Huyser Attorneys, we specialise in guiding our clients through the patent filing process, ensuring that their inventions are legally protected.

Step 1: Understand What Can Be Patented

Before diving into the filing process, it’s essential to understand what constitutes a patentable invention under South African law. The Patents Act No. 57 of 1978 defines the requirements for an invention to be patented:

  • Novelty: The invention must be new, meaning it has never been publicly disclosed, patented, or used before.
  • Inventive Step: The invention must involve an inventive step that would not be obvious to someone skilled in the relevant field of technology.
  • Industrial Applicability: The invention must be useful in some kind of industry (including agriculture, manufacturing, or services).

If your invention meets these criteria, it could be eligible for patent protection. Consulting a patent attorney, such as those at Burger Huyser Attorneys, can help you determine whether your invention qualifies for a patent.

Step 2: Conduct a Patent Search

Before you file for a patent, it’s crucial to conduct a patent search. A patent search will help determine if your invention is truly novel and if a similar invention has already been patented. This can save you time, money, and effort by preventing you from filing a patent application that may be rejected due to prior art (existing patents or public disclosures).

A patent attorney can assist you with conducting a thorough search of local and international patent databases to identify any potential conflicts. This will help ensure that your invention is unique and eligible for protection.

Step 3: Decide Between a Provisional or Complete Patent Application

In South Africa, there are two types of patent applications you can file: provisional patent applications and complete patent applications. Each has its benefits depending on your needs:

Provisional Patent Application

A provisional application is a preliminary filing that provides a 12-month priority period from the date of filing. The provisional application doesn’t require a detailed description or full claims but must include enough information to disclose the invention in a clear and complete manner.

  • Benefits:
    • Lower cost: Filing a provisional patent application is typically more affordable than a complete application.
    • Priority Date: The provisional application establishes a priority date, meaning no one can file for the same invention during the 12-month period.
    • Time to Refine: The 12 months give you time to refine the invention or secure funding before filing a complete application.
  • Drawbacks:
    • You’ll need to file a complete application within 12 months or risk losing your priority date.

Complete Patent Application

A complete patent application is a formal filing that includes a detailed description of the invention, its claims, diagrams, and an abstract summarizing the invention. Once you file a complete application, the CIPC (Companies and Intellectual Property Commission) will examine the application for novelty, inventiveness, and industrial applicability.

  • Benefits:
    • Full Protection: You’ll receive comprehensive protection for your invention.
    • No Time Limitation: Unlike provisional applications, there’s no deadline for filing a complete application once the provisional application is filed.
    • Patent Grant: A complete patent application, once examined and approved, leads to the issuance of a granted patent.

Step 4: Prepare Your Patent Application

To file a patent in South Africa, you need to submit a formal application to the CIPC. This application must include specific documents to ensure that it meets the legal requirements for patent protection:

  1. Detailed Description: A thorough explanation of your invention, including how it works and how it differs from existing technology.
  2. Patent Claims: Claims define the legal boundaries of the invention and what the patent covers. These claims should be clear, precise, and crafted to avoid ambiguity.
  3. Drawings: Diagrams or technical drawings that help illustrate how the invention works. These drawings must comply with specific formatting standards.
  4. Abstract: A brief summary of the invention, usually no longer than 150 words. This is intended for use in patent databases.
  5. Patent Application Form: A formal application form must be completed and submitted to the CIPC.

A patent lawyer will ensure that these documents are properly drafted and comply with the requirements set out by the CIPC, minimizing the chances of rejection or delays.

Step 5: File Your Patent Application with the CIPC

Once the application is prepared, the next step is to file it with the CIPC. You can submit your application either online via the CIPC website or in person at their office. The application must be accompanied by the required fees, which vary depending on whether you are filing a provisional or complete application.

For a provisional application, the filing fee is generally lower, but a complete patent application involves higher filing fees, as it includes more detailed information and a formal examination process.

A patent attorney can assist with the filing process, ensuring that all fees are paid correctly and the application is submitted without error.

Step 6: Patent Examination

After you file your application, it will be examined by the CIPC. During the patent examination, the CIPC will check if your invention meets the criteria of novelty, inventiveness, and industrial applicability. If the CIPC identifies any issues with your application, you may be required to address them.

  • Formal Examination: The CIPC reviews whether the application is complete and compliant with all formal requirements.
  • Substantive Examination: The CIPC evaluates whether the invention is truly novel and non-obvious, and if it can be applied in industry.

If everything is in order, the CIPC will grant the patent, and your invention will be protected for 20 years. If there are any objections, your patent lawyer will help you respond to these issues and ensure the application proceeds smoothly.

Step 7: Maintain Your Patent

Once your patent is granted, it’s crucial to keep track of annual renewal fees to maintain your patent’s validity. If you fail to pay these fees, your patent rights may lapse, and your invention could lose its protection. The maintenance fees increase over time, so it’s essential to plan for these ongoing costs.

Why Do You Need a Patent Lawyer?

Filing a patent can be a complex process, requiring attention to detail and an understanding of the legal requirements. A patent lawyer can help you at every step, from conducting a patent search to preparing and filing your application, responding to office actions, and enforcing your patent rights.

At Burger Huyser Attorneys, we specialise in assisting inventors and businesses with the patent filing process in South Africa. Our team of experienced patent lawyers is committed to ensuring that your intellectual property is fully protected, allowing you to focus on your innovation and business growth. With the help of our skilled patent lawyers, you can navigate the complexities of patent law and maximize your chances of success. If you’re ready to file a patent or need assistance with any stage of the process, contact Burger Huyser Attorneys today.

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