Comprehensive Guide for South African Patents
When you come up with a groundbreaking invention, securing a patent can be an essential step to protect your intellectual property. However, not everything can be patented. There are specific criteria that an invention must meet to be eligible for a patent, and it’s crucial to understand the dos and don’ts of what can and cannot be patented in South Africa.
At Burger Huyser Attorneys, our team of expert patent attorneys specializes in intellectual property law and can guide you through the patent registration process.
What Can Be Patented?
To qualify for patent protection, your invention must meet certain criteria laid out by the Patents Act No. 57 of 1978 in South Africa. These criteria ensure that patents are granted only to true innovations that provide tangible benefits to society. The following characteristics define what can be patented:
1. Novelty (Newness)
One of the most crucial aspects of a patent is novelty. An invention must be new—it must not have been disclosed, used, or published before the patent application is filed. If your invention has been described in any prior art (such as previous patents, academic journals, or public use), it will not be considered novel and will not qualify for patent protection.
In practice, this means that if your invention builds on previous ideas, it must still offer something new and innovative. This is why conducting a patent search before filing your application is a good idea—it helps identify if your invention has already been patented or disclosed.
2. Inventive Step (Non-Obviousness)
An invention must involve an inventive step, meaning it cannot be an obvious improvement or modification of an existing product or process. If someone with ordinary skill in the relevant field could easily deduce your invention from prior art, it will not meet the inventive step requirement.
For example, if your invention is a slight modification of an existing product that someone in the field would naturally consider, it may not qualify for a patent. However, if your invention brings a new and innovative solution to a technical problem that would not be obvious to an expert in the field, it is more likely to meet the inventive step criterion.
3. Industrial Applicability (Usefulness)
To qualify for patent protection, your invention must be industrially applicable, meaning it must be capable of being used in some kind of industry or have a practical application in the real world. This includes manufacturing, agriculture, healthcare, or even business processes.
Inventions that can be used in an industrial or commercial context, such as new machines, chemical processes, or methods, are usually eligible for patents. However, if your invention has no practical use or cannot be reproduced on a commercial scale, it may not meet this requirement.
4. Technical Nature
The invention must have a technical character or involve a technical solution to a problem. This is a broad requirement, but it ensures that patents are granted for inventions that provide a real-world, technical benefit. For example, inventions related to new machinery, processes, software that provides a technical solution, or even improved manufacturing methods are generally eligible for patent protection.
Examples of patentable inventions include:
- New technologies or machinery (e.g., a new engine design).
- Chemical compounds or processes (e.g., a new pharmaceutical formula).
- New software or applications that solve a specific technical problem.
- Medical devices or diagnostic methods.
What Cannot Be Patented?
While many inventions qualify for patent protection, some do not meet the criteria set by South African law. It’s essential to understand what cannot be patented to avoid wasting time and resources on an application that will likely be rejected.
1. Abstract Ideas or Scientific Theories
Inventions that are purely abstract ideas or theories are not patentable. This includes ideas that lack practical application and are purely theoretical in nature. The law requires that an invention must have a concrete, technical solution to a problem. For example, simply discovering a mathematical theory or a natural law is not patentable, as these are not inventions with practical industrial applicability.
2. Business Methods and Algorithms
In South Africa, business methods that are simply a set of instructions on how to conduct business or algorithms that do not offer a technical solution are not patentable. For instance, methods of doing business, such as a new way to organize a company’s finances or a new marketing technique, cannot be patented. Similarly, a mathematical formula used for calculation or data analysis on its own will not qualify for patent protection.
However, if a business method or algorithm includes a technical innovation—such as a software system that solves a technical problem—it may be eligible for a patent. This is an area where careful consideration is necessary, as patent protection for software can be a gray area.
3. Natural Phenomena or Laws of Nature
Natural phenomena or laws of nature cannot be patented. These are discoveries rather than inventions. For example, the discovery of a new element or a naturally occurring substance would not be eligible for a patent, as these are not creations of the mind—they exist in nature. Patents are only granted for new methods, devices, or processes that make use of natural phenomena in a novel, useful, and inventive way.
4. Aesthetic Creations (Art, Designs)
Inventions that are purely aesthetic and do not have a technical function are also excluded from patent protection. This includes artistic works, such as paintings, sculptures, and other forms of visual art. Similarly, designs that are solely focused on the appearance of a product (rather than its functionality) cannot be patented. However, such works may be eligible for protection under other areas of intellectual property law, such as copyright or design patents (also known as industrial designs).
5. Living Organisms
While certain biotechnology inventions may be patentable, the biological matter itself, such as living organisms or parts of organisms (like genes), may not be patented unless they are sufficiently modified and meet the novelty and inventive step requirements. For example, genetically engineered organisms that are significantly altered from their natural state may be eligible for patent protection.
6. Methods of Medical Treatment
In some jurisdictions, methods of medical treatment are excluded from patent protection. In South Africa, however, methods related to medical procedures that involve physical manipulation of the human body or therapeutic treatments are not patentable. However, medical devices or methods that involve a technical solution to a medical problem (e.g., a new surgical instrument) are eligible for patent protection.
Why Is Patent Eligibility Important?
Understanding what can and cannot be patented is essential to successfully navigating the patent process. By ensuring that your invention meets the necessary criteria, you can save time and resources, and focus on building a strong case for protection.
At Burger Huyser Attorneys, we specialise in patent law and are ready to assist you with determining the patentability of your invention. Our expert patent attorneys will guide you through the entire process, from conducting a patent search to filing your application and defending your rights in case of infringement.
If you’re unsure whether your invention meets the criteria for patent protection, Burger Huyser Attorneys is here to help. Our team of professionals can provide you with the legal expertise you need to navigate the complex world of intellectual property.
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
