South Africa has a depository patent filing system. South African patent applications are not subjected to substantive examination. As a result, the cost of obtaining a granted patent in South Africa is relatively low and no examination or final grant fees are payable. South Africa is a member of the Paris Convention and the PCT. The deadline for filing PCT national phase applications is 31 months from the earliest priority date. The South African Registrar of Patents has discretion to extend the national phase entry deadline by 3 months on request.
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If you have invented a new product, process or method then you may be able to obtain patent protection for your invention. It is crucial, however, that you keep your invention secret until you have filed a patent application.
What is a patent?
A patent is a limited monopoly granted by the state to an inventor, or other person entitled to the invention, in exchange for a full disclosure of the invention to the public. This monopoly entitles the patent holder to prevent others from using the invention in any practical manner for the duration of the patent, so that only the patent holder enjoys any profit or advantage that the invention affords for the period. After expiry of the period members of the public are free to use the invention.
Is my invention patentable?
To be patentable in South Africa an invention must be new, inventive and useful.
“New” means that the invention has not been made available to the public anywhere in the world – by word of mouth, by use, in any printed publication, or in any other way – before a first application is made for a patent. It is difficult to establish whether an invention is in fact new, but novelty may be assessed by carrying out searches through existing printed publications that include previously published patent specifications.
“Inventive” means that the invention must not be obvious to a person of ordinary skill in the art to which the invention relates. Put differently, the invention must not be so similar to what was available or used previously that it required little or no ingenuity to make the invention; that is to say, it must involve an inventive step. For example, it would be obvious to make an article that was previously made exclusively of metal in a plastic material, if there were no special and unforeseeable advantages to making it in plastic.
“Useful” means the invention must be capable of being applied in trade, industry or agriculture.
In addition to the above three requirements there are certain “inventions” which cannot be patented in South Africa. The most important of these are pure business methods and computer programs. This prohibition, however, does not extend to inventions that merely make use of business methods or computer programs, while not constituting business methods or computer programs as such. We urge you to contact us if you are uncertain as to whether an invention constitutes a pure business method or computer program.
Lastly, a method of treatment of the human or animal body by surgery, therapy or diagnosis is not patentable in South Africa.
How long does a patent last?
A South African patent lasts 20 years from the date of application, subject to the payment of annual renewal fees as from the third anniversary of the filing date.
How easily can someone else get around my patent?
The scope of protection afforded by a patent is defined by the patent claims. A well-drafted set of patent claims will prevent others from being able to reverse-engineer the invention by including or excluding inessential features while still using the basic idea of the invention. This is why the use of patent attorneys who are experienced in the drafting of patent specifications is so important.
What can I do with a patent?
A patent is property and may be sold (by way of assignment) or licensed for use by others. Alternatively, a patent can be used defensively to prevent others from exploiting the invention, provided the patent holder exercises the invention to an adequate extent.
How do I apply for a patent?
A patent application is made by filing a patent specification, together with the necessary forms and government fees, at the Patent Office in Pretoria. The patent specification, which includes a description of the invention as well as any drawings which may be necessary for a clear understanding of the description, may be either a provisional or complete patent specification.
If the invention is not yet in its final form it is preferable to file a provisional patent application first, and then a complete patent application within 12 months, because improvements made to the invention can be incorporated into the complete patent specification. A complete application may be in the first instance if sufficient information about the invention and its implementation is available.
If given a description of the invention, we will prepare the patent specification and the necessary forms and file a patent application on your behalf. All the administrative functions will be carried out by our offices.
How do I get patents in other countries?
A patent application must be filed in each country in which protection is sought. However, in respect of most countries in the world, corresponding foreign patent applications can be filed within 12 months from the first patent application in terms of the Paris Convention.
The Patent Cooperation Treaty (PCT) provides a mechanism to delay the filing of individual foreign applications by a further 18 months, and also provides a facility for tailoring a patent specification according to the results of an international search and examination. Should you require patent protection in more than 2 or 3 foreign countries, we usually recommend filing a PCT patent application, unless it is essential that granted patents be obtained in the foreign countries as soon as possible.
A PCT application must be filed within 12 months from the date of first filing a patent application, regardless of whether the first patent application is a provisional or complete South African patent application.
What are the costs involved?
The cost involved in preparing and filing a provisional or complete patent application will vary from case to case and will depend on the length of the patent specification and that will, in turn, depend on the technology and the type of invention.
Our charges are very competitive and we encourage you to contact us with details of your invention to enable us to provide you with an estimate of the costs involved.
The following are not patentable in South Africa:
Business methods, schemes or rules
Schemes, rules or methods for playing games or performing mental acts
The presentation of information
Animals or plants or biological (not microbiological) processes for the production of animals or plants
Methods of treatment of the human or animal body by surgery, therapy or diagnosis
In the case of business methods and computer programs, the restriction only applies to cases where the patent relates to such invention as such, not to cases where the invention merely includes such an invention. Unfortunately our courts have not yet had the opportunity of interpreting this section, but we expect that the interpretation applied to the patentability of computer programs and business methods will probably be similar to that followed in the European Patent Office and other jurisdictions having similar prohibitions. We would therefore suggest that a decision as to whether to apply for patent protection in South Africa should be based on the same considerations that apply to obtaining patent protection in the EPO.
Although methods of treatment of the human or animal body are not patentable in South Africa, this restriction does not apply to an invention comprising a new substance for use in a method of treatment. It also does not apply to inventions comprising a known substance for use in a new method of treatment, provided the substance has not been used in any such method. First medical use claims are therefore allowable, but it is not yet clear whether second medical use claims will be enforceable. We also regularly file Swiss-form claims in South Africa, although the validity of these have also not been finally pronounced upon.
For urgent convention patent filings, the following details must be provided:
1. Full names and official address of the applicant(s)
2. Full names and residential address of each inventor
3. Title of the invention
4. Priority application number, date and country
On the basis of these details a valid filing date can be secured. The specification, claims and drawings have to be filed within 14 days from the date of filing of the application.
The documents required for filing, together with the maximum time periods within which they can be filed, are the following:
|Documents required||No. of months after filing|
|Details in 1 to 4 above||Immediately|
|Specification, claims and drawings in any language||2 weeks|
|Specification, claims and drawings* in English (if not in English initially)||3 months|
|A certified priority document for each priority claimed. If the priority document is not in English, a certified translation is required.||6 months**|
|Declaration and Power of Attorney on Patents Form P3, signed by the applicant or its representative (no legalisation required)||6 months**|
|Form P26 Statement concerning the use of South African indigenous biological resource, genetic resource, traditional knowledge or use||6 months**|
|Assignment of Invention, signed by each inventor if the inventor(s) are not the applicant(s) (no legalisation required)||Before acceptance***|
|Assignment of Priority Rights, if the applicant is not the applicant in respect of the priority application (no legalisation required)||Before acceptance***|
|Abstract of the invention||Before acceptance***|
* Formal drawings on white paper of A4 size and with the margins left clear (Top: 25mm, Left: 25mm, Right: 15mm, Bottom: 10mm).
** This time period can be extended on application to the Registrar.
***These documents must be filed in time for acceptance of the application to take place within 18 months, or on application to the Registrar, 21 months from the date of filing.
For urgent filings, all that is required is the WIPO publication sheet, or the WO publication number or the PCT international application number which will permit us to obtain a copy of the WIPO publication sheet from the Internet.
In due course, the following will be required:
|Documents required:||No. of months after filing|
|English translation of the PCT specification (if not in English initially). The translation need not be certified||3 months|
|Certified priority document (if not filed in relation to the PCT application). It need not be translated||6 months|
|Form P26 Statement concerning the use of South African indigenous biological resources, genetic resource, traditional knowledge or use||6 months|
|Declaration and Power of Attorney Form P3, signed by the applicant or its representative (no legalisation required)||6 months|
|Assignment of Invention, signed by each inventor if the inventor(s) are not the applicant(s) (no legalisation required). No assignment is needed if an article 4.17 declaration was filed||12 months|
|Assignment of Priority Rights, if the applicant is not the applicant in respect of the priority application (no legalisation required)||12 months|
|Abstract of the invention||12 months|
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Our charges are very competitive and we encourage you to contact us should you require a copy of our tariff.