By Edward Nathan Sonnenbergs
Patent protection may be obtained for inventions which are new and non-obvious (inventive), and capable of use in trade, industry or agriculture. The concept of international novelty is applied, meaning that in order to be patentable in South Africa, the invention forming the subject matter of the patent application cannot have been put into the public domain, by use, description or have been otherwise known, anywhere in the world, prior to the application date of the patent.
South Africa is a member of the Paris Convention and a signatory to the Patent Co-operation Treaty, which means that laws and procedures are closely aligned to international ones. The Paris Convention, for example, allows a South African patent application to form the basis for a foreign application, or vice versa, provided that they are filed within 12 months of each other. This is known as claiming priority.
Excluded from protection are discoveries, scientific theories and mathematical methods, while literary, dramatic, musical or artistic works or aesthetic creations as copyrightable material, also cannot be patented. There is some uncertainty regarding patenting of software programs and business methods which will hopefully be resolved either by up-dated legislation or Court rulings.
An application is commenced by filing a patent specification which describes the invention. Typically a provisional specification is filed first and is followed later by a complete specification which must be drafted and signed by a qualified patent attorney. Do-it-yourself provisional patent specifications may be filed, but this practice is not recommended as it could have seriously adverse effects for the validity of the patent. South Africa has a non-examining patent system which means that no investigation is carried out by the Patent Office, into the validity or patentability of the invention described in the patent specification. Examination is to formalities only. Acceptance of the application takes place six to eight months after filing and must be advertised in the Patent Journal. The certificate of registration will issue thereafter but the publication date is regarded as the grant date of the patent.
It is not possible to oppose a patent application, but applications can be made to revoke granted patents.
A granted patent gives the patentee the right to prevent others from making, using, exercising or disposing of or offering to dispose of or importing the invention, in South Africa.
Patent protection is for 20 years from the date of lodging the complete patent specification in South Africa provided that yearly renewals are paid annually after the third anniversary. It is not possible to obtain an extension of this period.
It is possible to assign a patent or issue a licence or licenses under a patent. Assignment means the transfer of the patent rights to the assignee whereas a licence generally leaves the patent in the name of the patentee and the payment of royalties by the licensee. Assignment and licensing agreements should be drawn up by a patent attorney, as they have to include special provisions pertaining to the Patents Act. If the assignment is not recorded at the Patent Office, it is only valid between the contracting parties.