Patent
Law
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.
What is a Patent?
A patent is an exclusive monopoly right granted for a product or a process that provides, in general, a new way of doing something or offers a new technical solution to a problem.
Requirements for Patentability
To be eligible for a patent, an invention must meet certain criteria. It should be new, involve an inventive step (in other words, not be obvious to someone skilled in the field), and be capable of industrial application (in other words, useful).
Types of Patents
South Africa recognizes two main types of patent applications: complete patent applications and provisional patent applications
Complete Patents
These provide protection for up to 20 years from the filing date of the application. Complete patents provide patent rights that can enforced against infringers, once granted. Complete patent rights can only be obtained for an invention that is in its final form (in other words, no significant changes or additions are anticipated).
Provisional Patents
These provide protection for up to 12 months from the filing date of the application. Provisional patent applications are never granted, and do not provide enforceable rights, but they offer a quicker and more cost-effective way of securing patent rights whilst an invention is still being developed and not in its final form. A provisional patent application can be followed with a complete patent application within 12 months from filing, and the complete patent application will then be “backdated” to the date of filing the provisional application.
Application Process
To obtain a patent in South Africa, an inventor must file a patent specification with the Companies and Intellectual Property Commission (CIPC). The specification should include a detailed description of the invention, along with any necessary drawings or diagrams.
Enforcement
Once granted, a patent provides the owner with exclusive rights to make, use, sell, or license the patented invention. If someone else uses, makes, or sells the patented invention without permission, the patent owner can take legal action to enforce their rights.
International Protection
While a South African patent provides protection within the country, inventors may also seek international protection through mechanisms like the Patent Cooperation Treaty (PCT) if they require patent protection in other countries.
Examination
Complete patent applications only undergo a formal examination to determine whether all the required accompanying documents have been filed. Once the formal examination is completed, the application is accepted, and it will then be published in the South African Patent Journal for a period of 2 months. Following which, the patent will be granted, and a Certificate of Grant will be issued for the patent. Provisional patents are not subject to any examination processes and remain as a “pending” patent for their full 12-month term.
Obtaining a patent in South Africa is a strategically vital tool for inventors and businesses to protect their innovations and gain a competitive advantage in the market. Inventors can also monetize their intellectual property. For example, a patent owner can license the patented technology to others or generate revenue through licensing agreements. Additionally, the inventor may choose to sell or assign the patent rights to another party. Patents can therefore be valuable assets.