What Are The Key Requirements for Patenting in South Africa?

In today’s fast-paced world, innovation is key to staying ahead of the competition. Whether you’re an inventor, entrepreneur, or business owner, protecting your intellectual property through a patent is one of the most effective ways to ensure that your creations remain exclusively yours. In South Africa, patent protection is governed by South African Patent Law, which provides legal frameworks to safeguard your inventions.

At Burger Huyser Attorneys, we specialise in assisting clients through the complexities of South African patent law. 

South African patent law sets forth three essential criteria that must be met for an invention to be eligible for patent protection. 

These criteria are:

  1. Novelty:
    • The invention must be new and not have been disclosed publicly in any form (e.g., through publications, public use, or prior patents) before the filing date of the patent application. This means the idea must be original and must not be part of the prior art.
  2. Inventiveness:
    • The invention must involve an inventive step, meaning it must not be obvious to someone skilled in the relevant field. An invention that is an obvious extension or improvement of existing technology is unlikely to qualify for patent protection.
  3. Industrial Applicability:
    • The invention must have practical use or be capable of being made or used in some kind of industry, including agriculture, manufacturing, or services.

If your invention meets these three criteria, you may be eligible to apply for patent protection under South African patent law.

Types of Patents in South Africa

South Africa recognizes two main types of patent applications:

  1. Provisional Patent Application:
    • A provisional patent application is a more straightforward, lower-cost method to secure a filing date for your invention. It gives you 12 months to refine and improve your invention before you are required to file a complete patent application.
    • A provisional application does not require the claims or detailed description that a complete patent application does. However, it must include enough detail to allow someone skilled in the field to understand and replicate your invention.
    • The provisional application provides “priority” for your invention, meaning that no one else can patent the same invention during the 12-month period.
  2. Complete Patent Application:
    • The complete patent application is a formal and detailed submission that includes a full description of the invention, its claims, diagrams, and an abstract summarizing the invention.
    • Once filed, the application undergoes a formal examination process by the Companies and Intellectual Property Commission (CIPC) to ensure it meets the patentability criteria.
    • After the examination, the patent may be granted, providing the inventor with exclusive rights to the invention for 20 years, subject to annual maintenance fees.

Patent Filing Process in South Africa

The process of patenting in South Africa is managed by the CIPC, which is responsible for reviewing, granting, and maintaining patents. The steps for filing a patent in South Africa are as follows:

  1. Patent Search:
    • Before filing, it’s advisable to conduct a patent search to determine whether your invention has already been patented. This search helps you assess the novelty of your invention and ensures that you’re not infringing on existing patents.
    • Patent attorneys, such as those at Burger Huyser Attorneys, can conduct thorough patent searches to help you avoid potential conflicts and increase your chances of success.
  2. Preparing Your Patent Application:
    • Once you’ve confirmed that your invention is patentable, the next step is to prepare the necessary documents for your patent application. This includes a detailed description of the invention, claims that define its scope, drawings, and an abstract.
    • Patent claims are critical in determining the scope of your patent protection. The broader the claims, the more protection you will have over your invention.
  3. Filing Your Application with CIPC:
    • After preparing your application, you need to submit it to the CIPC. The filing can be done either online or through physical submission, depending on the type of application you’re making.
    • A filing fee is required when submitting a patent application. This fee varies depending on whether you are filing a provisional or complete application.
  4. Patent Examination:
    • Once your application is submitted, it will undergo a formal examination by the CIPC. During this examination, the CIPC reviews the application to ensure it meets the requirements for novelty, inventiveness, and industrial applicability.
    • If there are any issues with your application, the CIPC will issue an examination report. You may be required to amend your application or clarify any points before the patent is granted.
  5. Patent Grant and Publication:
    • If your application passes the examination, your patent will be granted. The CIPC will then publish the patent in the Patent Journal, making it publicly accessible. From this point forward, your invention will be protected for 20 years, as long as you maintain the annual renewal fees.

Patent Maintenance and Renewal

Once your patent is granted, it’s essential to keep track of annual maintenance fees to keep your patent in force. These fees are due each year and must be paid to the CIPC in order to maintain your patent protection.

If you fail to pay the renewal fees, your patent may lapse, and your exclusive rights will be forfeited. The cost of maintaining a patent increases as the years go by, so it’s important to budget for these ongoing costs if you want to retain your patent protection for the full 20-year term.

Why You Should Consult a Patent Attorney

Patent law can be intricate and difficult to navigate without professional guidance. Working with an experienced patent attorney can significantly improve the chances of your patent application being successful. A patent attorney can:

  • Conduct a thorough patent search to assess the novelty of your invention.
  • Help you prepare a robust patent application that meets all the legal requirements and properly defines the scope of your invention.
  • Assist you in responding to CIPC queries and amending your application, if necessary.
  • Guide you through the patent renewal process and ensure that you maintain your patent rights over time.

At Burger Huyser Attorneys, we specialise in helping clients secure patent protection for their inventions and intellectual property. With years of experience in South African patent law, we provide expert guidance and support throughout the entire patenting process. Contact our experienced Intellectual Property 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