What Can Be Patented in South Africa?

In today’s rapidly evolving world of innovation, intellectual property (IP) rights are essential for protecting the ideas, inventions, and creative works of businesses and individuals. Among the various forms of IP, patents stand out as one of the most valuable tools for safeguarding inventions. In South Africa, patent law is governed by the Patents Act No. 57 of 1978, along with its regulations. This legal framework provides inventors with the rights to exclude others from making, using, or selling their inventions for a period of up to 20 years, giving them an exclusive market position.

At Burger Huyser Attorneys, we specialise in patent law and help our clients navigate the complexities of patent protection.

What are the Requirements for a Patent in South Africa?

Not all ideas and inventions are eligible for patent protection. According to South African patent law, to be patentable, an invention must meet the following three basic criteria:

1. Novelty

An invention must be novel, meaning it must be new and not have been disclosed to the public before the patent application is filed. This includes any public use, publications, or patents that have already been made available to the public. If the invention has been disclosed previously in any way, it cannot be patented unless it involves significant improvements or modifications.

2. Inventive Step

The invention must also involve an inventive step, meaning that it cannot be obvious to someone skilled in the relevant technical field. In other words, the invention must represent an advancement beyond what is already known or readily accessible. A combination of known elements that is obvious to a skilled person in the field is not patentable.

3. Industrial Applicability

For an invention to be patentable in South Africa, it must have industrial applicability, which means that it can be used in some form of industry, including agriculture, manufacturing, or services. This criterion ensures that patents are granted only for inventions that have practical utility in real-world applications.

It’s important to note that certain items cannot be patented under South African law, including:

  • Scientific principles or theories that are not fully developed into a practical invention.
  • Mathematical formulas or abstract ideas.
  • Methods of medical treatment or diagnostic procedures.
  • Plant or animal varieties, though these may be protected under different IP laws.

The Process of Obtaining a Patent in South Africa

Obtaining a patent in South Africa is a multi-step process that requires careful planning and adherence to the regulations outlined in the Patents Act. Here’s an overview of the steps involved:

1. Conduct a Patent Search

Before applying for a patent, it’s essential to conduct a patent search to determine if your invention is truly novel. A thorough patent search will examine existing patents and prior art to see if similar inventions have already been patented. This search can save you time and money by ensuring that your invention is new and qualifies for patent protection.

While you can perform an initial search on your own, it’s highly recommended to consult with a patent attorney, such as those at Burger Huyser Attorneys, to conduct a more detailed search. Patent attorneys have access to professional databases and can provide you with a more comprehensive analysis of your invention’s novelty.

2. File a Provisional Patent Application

In South Africa, you can choose to file a provisional patent application. This is a temporary filing that gives you a 12-month priority period from the date of filing to develop, refine, and commercialize your invention before filing a complete patent application.

The provisional application doesn’t require formal claims or detailed descriptions, but it must disclose the invention in sufficient detail so that someone skilled in the relevant field can understand it. This filing helps establish a priority date for your invention, which is essential when filing for patents in other countries.

3. File a Complete Patent Application

The complete patent application is a formal document that must contain a detailed description of your invention, claims that define the scope of protection, and diagrams (if necessary) that illustrate how your invention works. The complete application is filed with the Companies and Intellectual Property Commission (CIPC).

A patent attorney can assist with preparing the complete application, ensuring that the claims are clearly written, the descriptions are accurate, and the legal requirements are met. A poorly drafted patent application can lead to rejection or disputes later on, so expert legal assistance is crucial.

4. Patent Examination

Once a complete patent application is submitted, it undergoes examination by the CIPC. The patent office examines the application for compliance with the requirements of novelty, inventiveness, and industrial applicability. The examiner may issue an office action if there are any objections or issues with the application.

At this stage, it’s essential to have an experienced patent lawyer to address any concerns raised by the patent examiner and ensure that the application progresses smoothly.

If the CIPC is satisfied with the application, they will grant the patent, and your invention will be protected for 20 years from the filing date.

Patent Rights and Enforcement in South Africa

Once a patent is granted, the patent holder has exclusive rights to make, use, and sell the patented invention. This means that no one else can commercially exploit the invention without the patent holder’s permission.

Patent Infringement

If someone infringes on your patent by using your invention without permission, you have the right to take legal action to stop the infringement. The enforcement of your patent rights may involve:

  • Sending a cease-and-desist letter to the infringer, demanding that they stop using your invention.
  • Filing a lawsuit in the High Court to seek damages or an injunction to prevent further infringement.

Patent law can be complex, and disputes often arise regarding the scope of protection, validity, and ownership of patents. It’s crucial to have a skilled patent attorney to assist you in enforcing your patent rights and addressing potential infringements.

Patent Licensing and Commercialization

Another way to benefit from your patent is through licensing or selling the rights to your invention. Licensing allows you to grant others the right to use, make, or sell your invention in exchange for royalties or a lump sum payment. This can be a lucrative way to generate income from your intellectual property.

Why You Need a Patent Lawyer in South Africa

Patenting an invention is not a straightforward process, and having the right legal guidance is essential to navigating the complexities of patent law in South Africa. A patent lawyer can help with the following:

  • Conducting patent searches to ensure your invention is novel and patentable.
  • Preparing and filing patent applications that comply with legal requirements.
  • Responding to office actions and negotiating with patent examiners to ensure your application is approved.
  • Enforcing your patent rights in case of infringement.
  • Advising on patent strategy, including licensing and portfolio management.

At Burger Huyser Attorneys, we are committed to providing expert patent legal services, helping our clients protect their inventions and maximize their intellectual property value.

If you have an invention that you believe is worth patenting, the team at Burger Huyser Attorneys is here to assist. With our expertise in South African patent law, we can help you secure the protection your invention deserves and guide you through the entire patent process.

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