What Are Patents?

A patent in South Africa is a statutory exclusive right granted for an invention that is new, involves an inventive step, and is capable of being used or applied in trade, industry or agriculture, registered under the Patents Act 57 of 1978 with the Companies and Intellectual Property Commission (CIPC). Once granted, the patent gives the owner the right to exclude others from making, using, exercising, disposing of, or importing the invention in South Africa for a maximum statutory term of 20 years from the date of filing, subject to payment of the prescribed renewal fees. A patent does not arise automatically from inventing something — it must be applied for, examined, and formally granted before the exclusive right comes into existence.

What a Patent Actually Is

A patent is, at its core, a statutory monopoly: a time-limited exclusive right granted by the state in exchange for public disclosure of the invention. In South Africa, the right is created by registration under the Patents Act 57 of 1978 (as amended, most substantially by the Patents Amendment Act 20 of 2005). There is no common-law patent right — invent something first, and you still own nothing enforceable until a granted patent is in your name. The monopoly runs for a maximum of 20 years from the date of filing the complete specification, and it survives only if the prescribed renewal fees are paid each year.

South Africa historically operated a “registration without substantive examination” system (commonly called the deposit system): a patent could be granted without the CIPC weighing the invention against prior art. The Patents Amendment Act 20 of 2005 introduced an optional substantive examination route, and a mandatory substantive examination regime now applies to applications filed on or after 1 March 2017. Earlier applications remain on the deposit system unless examination is requested.

Two further points worth noting up front:

• A granted patent gives the holder the right to exclude others from using the invention. It does not automatically give the holder the right to make or use the invention themselves — freedom-to-operate (no other IP, regulatory, or health-law barrier) is a separate question.
• A patent is a personal property right. It can be assigned, licensed, or transferred by succession in the same way as other property.

What Can (and Cannot) Be Patented

The Patents Act sets a three-part test. An invention must be:

1. New — not forming part of the state of the art immediately before the priority date. Public disclosure anywhere in the world before filing can destroy novelty, which is why inventors are routinely advised to keep an invention confidential until the application is lodged.
2. Involve an inventive step — not obvious to a person skilled in the relevant art, having regard to the state of the art.
3. Capable of being used or applied in trade, industry or agriculture — this criterion excludes purely scientific or theoretical discoveries from patentability as such.

The Act then lists express exclusions and public-policy carve-outs. The following cannot be patented in South Africa:

Types of Patents Recognised in South Africa

South Africa recognises two patent forms:

Type	Threshold	Maximum Term	Typical Use
Standard patent	New, inventive step, industrially applicable (full substantive criteria)	20 years from filing of complete specification (subject to renewal fees)	Core innovation with strong inventive step
Petty patent	New and industrially applicable; inventive-step threshold may be lower than for a standard patent	6 years initial term, renewable once for a further 4 years (10 years total)	Incremental innovation, shorter product lifecycle, lower-cost route

Petty patents were introduced by the Patents Amendment Act 20 of 2005 and provide a faster, lower-cost, lower-threshold route for incremental innovation where a standard patent may not be commercially justified.

The Patent Application Process

1. Filing — lodge a complete specification with the CIPC, setting out the invention, the claims defining the scope of protection, and any drawings.
2. Formal examination — the CIPC checks the application for procedural compliance; a formal deficiencies letter is issued if anything is missing.
3. Substantive examination (for applications on or after 1 March 2017) — examination is requested within the prescribed period; an examiner checks novelty, inventive step, and industrial applicability against the state of the art and raises objections on a patentability report.
4. Acceptance and advertisement — once in order, the application is accepted and advertised in the Patent Journal.
5. Opposition period — third parties may oppose the grant within the prescribed period.
6. Grant and sealing — if not opposed, or if opposition is resolved in favour of the applicant, the patent is granted and sealed. The exclusive right crystallises from the grant date, although damages for infringement generally run only from publication of acceptance.
7. Renewals — renewal fees are payable annually from the end of the third year to keep the patent in force. A lapsed patent may be restored within prescribed periods on payment of additional fees.

What Rights a Granted Patent Gives the Owner

A granted patent gives the owner the right to exclude others from:

• making the invention;
• using the invention;
• exercising the invention;
• disposing of the invention;
• offering the invention for sale; and
• importing the invention into South Africa.

Infringement is governed by section 56 of the Patents Act. The remedies available to a patentee include an interdict (court order to stop the infringing act), delivery-up or destruction of infringing goods, and damages or an account of profits.

A fundamental limit: the exclusive right is territorial. A South African patent protects the invention only in South Africa. Protection abroad requires separate national or regional applications in each country of interest.

What a Patent Doesn’t Do

Three common misconceptions are worth correcting up front:

• A patent does not guarantee the right to commercially make or sell the invention. Other regimes — health regulation, environmental authorisations, pharmaceutical registration, complementary IP rights — may apply independently.
• A patent does not protect ideas or discoveries in the abstract. Only the invention as claimed, reduced to a practical form, is protected.
• A patent does not last forever. The term is finite and the patent lapses if renewal fees are not paid.

Patents vs Other South African IP Rights — A Short Comparison

Right	What it protects	Term	Granted by
Patent	New, inventive, industrially applicable inventions	Up to 20 years from filing (10 years for petty patents)	CIPC, under the Patents Act 57 of 1978
Registered trademark	Marks used to distinguish goods or services	Renewable every 10 years, indefinitely	CIPC, under the Trade Marks Act 194 of 1993
Registered design	Aesthetic appearance of an article	Renewable every 5 years, up to 15 years	CIPC, under the Designs Act 195 of 1993
Copyright	Original literary, musical, artistic works; cinematographs; sound recordings; broadcasts; computer programs	Generally life of author + 50 years (varies by work)	Automatic on creation; no registration required

Where Patent Disputes Are Heard in South Africa

Patent law in South Africa is anchored in the Patents Act 57 of 1978, with the CIPC sitting in Pretoria as the administrative body that registers, examines, and grants patents. There is no separate Patents Court: patent litigation runs through the High Court. The Gauteng Division (Pretoria seat) hears matters arising in the northern part of the country, and the Gauteng Division (Johannesburg seat) hears matters arising in the south. Practitioners acting on patent matters must be registered as patent attorneys with the CIPC under the Patents Act — the “patent attorney” designation is a separate registration from admission as an ordinary attorney, although many practitioners hold both.

For anyone confirming current filing requirements, prescribed forms, renewal fees, or the status of a specific application, the CIPC’s published Patent Journal and online records system on cipc.co.za is the authoritative source.

Who Can Help with Patents

A patent attorney is the practical entry point — drafting the specification, filing the application, and conducting correspondence with the CIPC. Beyond prosecution, a patent attorney (or an admitted attorney with IP expertise) handles licensing, assignment, infringement disputes, and validity challenges.

Burger Huyser Attorneys fields patent and trademark work through its specialist intellectual-property consultant, Stefaans Gerber, covering patent and trademark prosecution, IP licensing and assignment, and IP-related commercial contract drafting. Initial conversations about a specific invention, application, or dispute are booked through the head office and routed through the IP consultancy for specialist handling.

Frequently Asked Questions

How long does a South African patent last?

A standard patent in South Africa runs for a maximum of 20 years from the date of filing the complete specification, provided the prescribed renewal fees are paid each year. Petty patents run for an initial 6 years, renewable once for a further 4 years (10 years total). If renewal fees are missed the patent lapses, although restoration is possible on payment of additional fees within the prescribed period.

What is the difference between a patent and a petty patent?

Both are statutory IP rights granted under the Patents Act 57 of 1978, but a patent has a higher inventive-step threshold and a 20-year maximum term, while a petty patent has a lower inventive-step threshold and a maximum 6-year term (renewable once for a further 4 years, total 10 years). Petty patents are typically used where the invention is clearly new and industrially applicable but the inventive step is less pronounced.

Can I get a patent by just inventing something?

No. A patent only comes into existence once it has been applied for, accepted, advertised, and granted by the CIPC. Before grant there is no enforceable patent right, and only the applicant has a personal right to the invention. Inventions should be kept confidential until an application is filed — public disclosure anywhere in the world before the priority date can destroy the novelty required for grant.

Does a South African patent protect my invention outside South Africa?

No. A South African patent is territorial — it protects the invention only within South Africa. Protection in other countries requires separate applications in each country of interest, generally within 12 months of the South African filing date to claim the original priority date under the Paris Convention.

What can and cannot be patented in South Africa?

A patent can be granted for an invention that is new, involves an inventive step, and is capable of being used in trade, industry or agriculture. The Patents Act expressly excludes discoveries, scientific theories, mathematical methods, business or game-playing methods, methods of medical treatment or diagnosis practised on humans or animals, and inventions contrary to morality or public order. Plants, animals and essentially biological processes are also excluded (with specific exceptions for eligible micro-organisms and technical processes).

Who do I speak to about filing a patent in South Africa?

A registered patent attorney — usually also an admitted attorney — handles the drafting, filing, and prosecution of patent applications. Burger Huyser Attorneys fields patent and trademark work through its specialist IP consultant (Stefaans Gerber) and can take instructions for patent prosecution, IP licensing, and IP-related contract drafting; initial consultations are booked through the head office on 011 888 0246.

Burger Huyser Attorneys fields patent and trademark work through its specialist intellectual-property consultant (Stefaans Gerber), with services covering patent prosecution, IP licensing and assignment, and IP-related contract drafting. For an initial conversation about a specific invention, application, or dispute, contact the head office on 011 888 0246 (after-hours 061 516 6878) or visit 49 First Avenue, Linden, Randburg, 2194. The firm’s IP service sits alongside its broader commercial, family, and litigation practices, which are rated 4.8/5 across 250+ Google reviews (Trustindex verified, “Top Rated Law Firm in South Africa”).