Patent Application Process

When it comes to intellectual property law, patents are one of the most powerful tools an inventor or business can use to protect their innovative ideas. However, not every invention is eligible for patent protection. In South Africa, a patent can only be granted if it meets specific legal requirements that demonstrate the invention is novel, useful, and non-obvious. Understanding these 5 requirements is crucial for anyone considering patenting their invention.

At Burger Huyser Attorneys, we specialise in patent law and are here to guide you through the patent application process, ensuring that your invention meets the necessary criteria for protection.

1. Novelty (Newness)

The first and most critical requirement for a patent is novelty. An invention must be new to be patented, meaning it cannot have been previously disclosed to the public in any way. If your invention has already been published, used, or patented by someone else, it will not qualify for patent protection.

In practice, this means that your invention must not exist in the prior art—the body of existing knowledge and technologies related to your field. Before applying for a patent, it’s highly recommended to conduct a patent search to determine whether any similar inventions or publications already exist.

The novelty requirement ensures that patents are only granted for truly new and innovative ideas, rather than ideas that have already been publicly disclosed. If you believe your invention is groundbreaking, it’s essential to confirm that it is indeed novel through a thorough search process.

2. Inventive Step (Non-Obviousness)

An invention must also involve an inventive step, meaning it must not be obvious to someone with average skill in the relevant field of technology. This requirement is sometimes referred to as non-obviousness.

The inventive step is evaluated by considering whether someone skilled in the art could have easily come up with the invention based on existing knowledge and technologies. If the solution to a problem is something that would be obvious to someone familiar with the area, the invention may not qualify for patent protection.

For instance, if an invention is simply an obvious modification or combination of existing technologies, it will likely fail the inventive step requirement. The more creative or non-obvious the invention, the more likely it will meet the patentability criteria.

3. Industrial Applicability (Usefulness)

A patentable invention must have industrial applicability. This means that the invention must be capable of being used or applied in some form of industry or commerce. In other words, it must have a practical, real-world application that offers some utility.

For example, an invention that cannot be made or used in any industrial context (such as a concept that has no practical application) would not meet the industrial applicability requirement. In contrast, a new type of machine or chemical process that can be used in manufacturing, agriculture, or even in healthcare would qualify as having industrial applicability.

This requirement ensures that patents are granted only for inventions that provide tangible value and can benefit society or the economy in some way.

4. Full Disclosure (Sufficiency of Disclosure)

One of the most important aspects of patent law is the requirement for full disclosure of the invention. In order to qualify for patent protection, the inventor must fully disclose how the invention works, how it is made, and how it can be used. This is typically done through a detailed patent specification that includes the following:

  • Detailed description of the invention
  • Drawings or diagrams illustrating how the invention functions
  • Patent claims that define the scope of the invention’s protection

The patent specification must be clear and complete enough that someone skilled in the relevant field can reproduce the invention based on the provided information. If the patent application fails to provide sufficient details or leaves out essential information, the patent application may be rejected.

This requirement exists to ensure that the public benefits from the disclosure of new knowledge. In exchange for the exclusive rights granted by a patent, the inventor must teach others how to make and use the invention once the patent expires.

5. Patentable Subject Matter (Eligibility)

The final requirement for a patent is that the invention must fall under patentable subject matter. This refers to the types of inventions that are eligible for patent protection under South African patent law. While the term “patentable subject matter” is broad, it is subject to specific exclusions.

Some types of inventions that cannot be patented in South Africa include:

  • Abstract ideas or theories: Concepts that are purely theoretical or scientific, without practical application.
  • Mathematical methods or algorithms: Purely mathematical or computational formulas without a technical or practical aspect.
  • Natural phenomena or laws of nature: Naturally occurring processes or substances that have not been altered in a novel way.
  • Aesthetic creations: Artistic or literary works, such as paintings or designs, that do not involve a technical function.
  • Business methods: Certain types of business methods and strategies may not be eligible for patent protection.

Essentially, a patentable subject matter must involve a technical innovation or a new way of solving a problem that is not purely abstract or conceptual.

Ensuring Your Invention Meets the Requirements in SA

When seeking patent protection for your invention in South Africa, it’s essential to ensure that your invention meets these 5 key requirements. These requirements are in place to ensure that patents are granted only to truly innovative and practical inventions.

Navigating the patent application process can be complex and highly technical. That’s where Burger Huyser Attorneys can assist. Our experienced patent attorneys specialise in intellectual property law and are equipped to help you determine whether your invention meets the necessary criteria for patentability. Contact us today for expert legal assistance in securing patent protection for your innovative ideas.

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