What Can Be Patented and What Cannot Be Patented?

A South African patent protects a new invention that involves an inventive step and is capable of being used or applied in trade, industry, or agriculture, and is granted for 20 years from the filing date subject to prescribed annual renewal fees. The framework is set out in the Patents Act 57 of 1978, which lays down three positive patentability tests (novelty, inventive step, and capability of use) and a closed list of statutory exclusions in section 25. South Africa runs a deposit system — the Companies and Intellectual Property Commission (CIPC) registers patents without a substantive examination of novelty or inventive step, but any granted patent remains open to revocation by a competent court on the usual validity grounds.

The Statutory Framework: Patents Act 57 of 1978 and the Role of the CIPC

Patents in South Africa are governed by the Patents Act 57 of 1978 (as amended by, among others, the Intellectual Property Laws Amendment Act 38 of 1997 and subsequent amendment Acts). The Patents Act implements South Africa’s obligations under the Paris Convention and the Patent Cooperation Treaty (PCT), set out in Chapter VA of the Act (sections 43A to 43F). The Act does not, however, require substantive examination of novelty or inventive step at grant — a feature that defines the practical risk profile of any South African patent.

The Companies and Intellectual Property Commission (CIPC), established under section 185 of the Companies Act 71 of 2008 and sitting within the Department of Trade, Industry and Competition, is the registry that receives patent applications, processes them, and grants patents. The CIPC keeps the Register of Patents and publishes the Patent Journal in terms of sections 10 and 14 of the Patents Act.

South Africa is a first-to-file jurisdiction. Under section 30(5), an application dates from the day it is lodged at the patent office, and patent rights vest in the first person to lodge a complete application, regardless of who first invented the subject matter. Renewal fees fall due annually from the third anniversary of the filing date, in terms of regulation 48(1) of the Patent Regulations, 1978. Lapsed patents can be restored under section 47, subject to the Act’s conditions and a six-month window for late payment under section 46(2).

The Three Positive Patentability Tests

Section 25(1) of the Patents Act sets out the three positive tests a patentable invention must meet. Each is a substantive threshold, and failure on any one is fatal to validity.

Test	Statutory basis	What it requires
Novelty	Section 25(5)–(8)	The invention must not form part of the “state of the art” immediately before the priority date. The state of the art comprises all matter made available to the public anywhere in the world by written or oral description, by use, or in any other way — and, under section 25(8), includes secret commercial-scale use within the Republic.
Inventive step	Section 25(10)	The invention must not be obvious to a person skilled in the relevant art, having regard to the state of the art as a whole. Small improvements that a skilled person would obviously arrive at are excluded.
Capability of use	Section 25(1) and (11)	The invention must be capable of being used or applied in trade, industry, or agriculture. Methods of medical treatment of humans or animals are deemed not to be capable of such application under section 25(11) (with a carve-out for the products used).

What CAN Be Patented in South Africa

Subject to meeting the three positive tests above, the following categories of invention are routinely patentable in South Africa:

• Mechanical devices and machines — tools, engines, mechanical assemblies, manufacturing equipment, and similar apparatus.
• Chemical compositions, pharmaceutical formulations, and new chemical entities — including new uses of known compounds where the use itself meets the patentability tests (see the special rule for first medical uses in section 25(9)).
• Manufacturing processes and industrial methods — novel ways of making a product.
• Biotechnology within the statutory carve-out — microorganisms per se, and microbiological processes and the products of those processes, are patentable under section 25(4)(b), even though plants and animals other than microorganisms and essentially biological processes for their production are excluded.
• Improvements — a new and non-obvious improvement to an existing patented or known device, composition, or process can attract its own patent (or a patent of addition under section 37).
• Product–process combinations — where the novelty lies in the combination of features rather than in any single feature.

What CANNOT Be Patented in South Africa (Section 25 Exclusions)

Section 25(2) of the Patents Act lists, in closed form, the categories of subject matter that “shall not be an invention for the purposes of this Act.” Section 25(3) qualifies these exclusions — they bite “only to the extent to which a patent or an application for a patent relates to that thing as such.” A software-implemented invention or a business method that produces a real technical effect beyond the excluded thing itself can still be patentable on its substantive merits.

Excluded under section 25(2)	Plain-language meaning
(a) a discovery	A natural phenomenon, observation, or finding — even a novel one — is not patentable merely for being identified.
(b) a scientific theory	A theoretical insight or law of nature is excluded; its practical application may be patentable.
(c) a mathematical method	Pure mathematics is excluded.
(d) a literary, dramatic, musical or artistic work or any other aesthetic creation	Copyright territory, not patents. These works are protected separately under the Copyright Act 98 of 1978.
(e) a scheme, rule or method for performing a mental act, playing a game or doing business	Abstract business methods and game rules as such are excluded.
(f) a program for a computer	Pure software, divorced from a technical effect or novel hardware implementation, is excluded.
(g) the presentation of information	The way information is presented is excluded.

Section 25(4) adds two further grounds on which a patent shall not be granted:

• Offensive or immoral inventions — section 25(4)(a) bars patents for inventions whose publication or exploitation would be generally expected to encourage offensive or immoral behaviour.
• Plants, animals, and essentially biological processes — section 25(4)(b) excludes any variety of animal or plant, and any essentially biological process for the production of animals or plants, other than a microbiological process or the product of such a process (the biotechnology carve-out).

Section 25(11) treats methods of treatment of the human or animal body by surgery, therapy, or diagnosis as not capable of being used in trade, industry, or agriculture. Section 25(12) confirms that the carve-out does not prevent a substance or composition invented for use in any such method from being patentable in its own right.

The South African Specifics: Deposit System, No Substantive Examination, Revocation Risk

South Africa runs a registration or deposit system. The CIPC examines patent applications only for formalities — correct filing, proper drawings, declarations, claims format, and (under section 30(3A)) disclosure of any indigenous biological resource, genetic resource, or traditional knowledge on which the invention is based. The CIPC does not conduct substantive novelty or inventive-step examination at grant.

This makes grant fast and predictable but leaves validity testing for the courts. A granted South African patent can be challenged and revoked by a competent court at any time on the standard grounds (lack of novelty, lack of inventive step, insufficient disclosure, excluded subject matter). Validity is therefore best understood as a defensible right — registrable on application, but with real exposure to revocation if challenged. Foreign applicants commonly file in South Africa alongside PCT national-phase entries; PCT national-phase deadlines under Article 22 or 39 of the Patent Cooperation Treaty, and Paris Convention priority windows under section 31, still apply.

The typical challenge forum is the Court of the Commissioner of Patents (a designated judge of the Transvaal Provincial Division of the High Court, sitting under section 8 of the Patents Act) or a revocation counterclaim raised in infringement proceedings before a competent division of the High Court.

The Life Cycle of a South African Patent

1. Filing. Lodge a complete specification (or provisional specification followed by a complete specification) with the CIPC and pay the prescribed fees under section 30.
2. Formalities examination. The CIPC checks the application for procedural compliance under section 34 — form, drawings, declarations, and the section 30(3A) disclosure statement.
3. Acceptance and advertisement. Once accepted, the patent is advertised in the Patent Journal.
4. Grant. The patent is registered, the certificate issues, and patent rights crystallise from the date of publication under section 44.
5. Renewals. Annual renewal fees fall due from the third anniversary of the filing date under regulation 48(1); lapse can occur if annuities are unpaid, with a six-month extension window under section 46(2) and restoration under section 47.
6. Possible revocation. At any time during the term, any person may apply to the Court of the Commissioner of Patents or to a competent court to revoke the patent on the usual validity grounds under sections 61 to 64.

When to Involve a Patent Attorney

A patent attorney does more than file forms. The value of specialist counsel sits in drafting claims to capture the broadest defensible scope, advising on novelty and inventive step against the prior art, prosecuting the application through the CIPC, and representing the patentee in any revocation proceedings.

Drafting claims too narrowly forfeits commercially valuable protection; drafting too broadly invites revocation on obviousness or excluded-subject-matter grounds. For computer-implemented inventions and biotechnology, claim drafting and prosecution are particularly sensitive areas where specialist advice materially changes the outcome — and where a practitioner who regularly prosecutes and defends patents in this jurisdiction, rather than relying on overseas patent categories, makes the practical difference. Burger Huyser Attorneys fields this work across its Gauteng branches through specialist consultant Stefaans Gerber, a registered patent and trademark attorney, with initial enquiries routed through the head office in Linden, Randburg.

Frequently Asked Questions

How long does a South African patent last?

A South African patent lasts 20 years from the filing date under section 46(1) of the Patents Act, subject to the payment of prescribed annual renewal fees from the third anniversary of the filing date onward under regulation 48(1). If renewal fees are unpaid the patent lapses, although a limited restoration window may apply under section 47, and section 46(2) allows a six-month extension for late payment of any renewal fee.

Can computer software be patented in South Africa?

Pure computer programs “as such” are excluded from patentability under section 25(2)(f) of the Patents Act. However, a software-implemented invention that produces a technical effect beyond ordinary software–hardware interactions can still be patentable on its substantive merits — the test is whether the invention as claimed does more than implement an excluded abstract idea.

Can business methods be patented in South Africa?

Schemes, rules, or methods for doing business “as such” are excluded under section 25(2)(e). A method that is purely an abstract business process, divorced from a technical implementation, will not attract patent protection. Business methods embedded in a novel technical system may be patentable on the underlying technical features.

Can methods of medical treatment be patented in South Africa?

Methods of treatment of the human or animal body by surgery, therapy, or diagnosis are deemed not capable of being used in trade, industry, or agriculture under section 25(11). The pharmaceuticals, devices, and compositions used in such treatment can themselves be patented where they meet the normal novelty, inventive-step, and capability tests, and section 25(9) provides a special novelty rule for first medical uses of known substances.

Are plants and animals patentable in South Africa?

Plants and animals other than microorganisms are excluded under section 25(4)(b), along with essentially biological processes for their production. Microbiological processes and the products of those processes are patentable under the carve-out in the same subsection.

Does South Africa examine patents for novelty before grant?

No — South Africa runs a deposit system. The CIPC examines applications for formalities only under section 34; substantive novelty and inventive step are not examined at grant. Any granted patent remains open to revocation by a competent court on the standard validity grounds under sections 61 to 64.

Is South Africa a first-to-file country?

Yes. Under section 30(5) of the Patents Act, an application dates from the day it is lodged at the patent office, and patent rights vest in the first person to file a complete application, regardless of who first invented the subject matter.

Considering whether to pursue a South African patent? Burger Huyser Attorneys can scope the work through its Intellectual Property practice, which is led by specialist consultant Stefaans Gerber, a registered patent and trademark attorney. The firm fields IP enquiries across its Gauteng branches and routes initial consultations through the head office in Linden, Randburg — telephone 011 888 0246, 49 First Avenue, Linden, Randburg, 2195. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and operates under the Patents Act 57 of 1978 and the CIPC’s current practice.