Archive for the ‘Designs’ Category
South Africa Patent Laws favour the usage of attorneys Even though it is possible to file a patent application directly without the usage of a patent lawyer or attorney, it cannot be recommended. The reason is simple. The South Africa patent laws favour the usage of an attorney. The South African Patent Office is a non-investigating office. This means that you can complete the application, file it and even receive the patent right upon payment of the required fees without the invention complying with all the requirements. It is not a loophole in the system. It simply means that the responsibility lies with the applicant to ensure that the invention is indeed patentable and that the application will be done correctly. The snag comes in when another applicant or company questions the patentability of the invention down the line or argues that the idea was not original at all. Lawsuits may follow and all the money already spent in the commercial development of the patent may be lost forever. You will need the help of a patent lawyer who knows the South Africa patent laws and will conduct the novelty searches and apply in the correct manner right from the word go.
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August 24, 2009 | Designs
Generally, industrial design protection is limited to the country in which protection is granted. Under the Hague Agreement Concerning the International Deposit of Industrial Designs, a WIPO-administered treaty, a procedure for an international registration is offered. An applicant can file a single international deposit either with WIPO or the national office of a country that is party to the treaty. The design will then be protected in as many member countries of the treaty as the applicant wishes. - WIPO
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August 24, 2009 | Designs
In most countries, an industrial design must be registered in order to be protected under industrial design law. As a general rule, to be registrable, the design must be "new" or "original". Different countries have varying definitions of such terms, as well as variations in the registration process itself. Generally, "new" means that no identical or very similar design is known to have existed before. Once a design is registered, a registration certificate is issued. Following that, the term of protection is generally five years, with the possibility of further periods of renewal up to, in most cases, 15 years.
Depending on the particular national law and the kind of design, an industrial design may also be protected as a work of art under copyright law. In some countries, industrial design and copyright protection can exist concurrently. In other countries, they are mutually exclusive: once the owner chooses one kind of protection, he can no longer invoke the other.
Under certain circumstances an industrial design may also be protectable under unfair competition law, although the conditions of protection and the rights and remedies ensured can be significantly different. - WIPO
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August 24, 2009 | Designs
Industrial designs are what make an article attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.
When an industrial design is protected, the owner - the person or entity that has registered the design - is assured an exclusive right against unauthorized copying or imitation of the design by third parties. This helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products.
Protecting industrial designs helps economic development, by encouraging creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts. They contribute to the expansion of commercial activities and the export of national products. - WIPO
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August 24, 2009 | Designs
An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.
Industrial designs are applied to a wide variety of products of industry and handicraft: from technical and medical instruments to watches, jewelry, and other luxury items; from housewares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.
To be protected under most national laws, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical features of the article to which it is applied.
- WIPO
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What is a registered design and how does it differ from a patent?
A patent protects the principle on which a new invention is based. Registered Designs protect the way something looks. This may be an existing article which has been redesigned and which you wish to protect from copiers.
What kinds of design protection are available?
In South Africa, designs are grouped into two distinct classes. Aesthetic designs are designs applied to any article, whether for the pattern or the shape or the configuration or the ornamentation, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof; these designs are protectable for a period of 15 years. Functional designs are designs applied to any article, whether for the pattern or the shape or the configuration thereof, having features which are necessitated by the function which the article to which the design is applied, is to perform. This includes not only items such as metal profiling and the like, but also integrated circuit topographies, and mask works. Functional designs are protectable for a period of 10 years. In addition, designs are grouped into different classes of technology and your design application may only be filed in the most relevant class of technology to which it relates.
What are the requirements for registration of a design?
This differs for aesthetic and functional designs. The proprietor of an aesthetic design must ensure that his design is (i) new and (ii) original. The proprietor of a functional design must ensure that his design is (i) new; and (ii) not commonplace in the field of technology. A design is deemed to be new if it is different from or if it does not form part of the state of the art immediately before the date of application for registration thereof or the date of release into the public domain. However, there is a six month grace period allowable, as set out below.
My design has aesthetic AND functional features – which type of design is most suitable?
We would suggest filing an aesthetic as well as a functional design application for your article. These are two separate applications, but we usually charge a reduced rate for the second and each following design filed in a class. Please
note that it is only possible to cover a single embodiment of your design in a design application. Should you have produced a new range of footwear with four or five variants, South African design law requires you to file separate design applications for each embodiment of the article.
I exhibited my design at a trade show recently – can I still obtain protection for it?
This is another point of difference between designs and patents. You will have forfeited any potential patent rights you may have had in your article by exhibiting it prior to filing a patent application. However, the South African
Designs Act allows a 6 month grace period for you to file a design application following the release of your design onto the market. In addition, if your design relates to a mask work or a series of mask works, there is a 2 year grace period allowable.
How long does it take to obtain a registered design?
It usually takes about six to eight months from the date of filing the application until notification of registration is received from the South African Designs Office.
Can I stop people from using my design before it has been registered?
No – as with a patent one may only enforce the application once it has been granted (or registered in the case of designs). Registration is a concept different to filing of the application. A design application is first filed, after which it is registered by the Designs Office in Pretoria. You do not have an enforceable right until your design has been registered. However, should you become aware of infringers copying your design, it is possible to apply to have the registration process expedited.
Contact
Please do not hesitate to contact any member of the Smit & Van Wyk team – we pride ourselves on being available to clients whenever and wherever we are needed.
Telephone + 27 (0) 12 844 1000 Fax + 27 (0) 12 844 1001 E-mail mail@svw.co.za Web www.svw.co.za
Enterprise Building 23B The Innovation Hub Hotel Street Pretoria 0087 South Africa
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Smit & Van Wyk Patent, Trademark & Copyright Attorneys
Legal Information Smit & Van Wyk, Inc. are registered attorneys of the High Court of South Africa in terms of the Attorneys Act No. 53 of 1979, registered patent attorneys in terms of Section 20 of the Patents Act 57 of 1978, and trademark attorneys. They are members of the South African Institute of Intellectual Property Law and subject to the relevant professional codes of the Law Society of the Northern Provinces (available at www.northernlaw.co.za) and the Code of Ethics of the Council of the Institute under Article 32 of the Constitution of the South African Institute of Intellectual Property Law (available at www.saiipl.org.za).
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1. Novelty Searches in view of obtaining patent protection for an invention:
If a product or concept identical to yours is already in existence anywhere in the world then you cannot obtain patent protection for the same concept in South Africa (or in most other countries for that matter). However, should you have invented an improvement on an existing concept and the improvement is (i) new, (ii) inventive, and (iii) has a use in trade, industry or agriculture, then such improvement may certainly be patentable.
In order to get an indication of whether such a product already exists anywhere in the world, we are able to conduct a fixed-cost, fixed-time novelty search through the European and American patent offices' databases. Such a search would give an indication of the novelty of the invention, however, keep in mind that it would not guarantee the invention's novelty. (The cost for such a search is typically R3000 including VAT for a fixed-cost, 2 hour patent novelty search and reporting thereof).
2. Patent and/or registered design protection:
Click here for our Patents Brochure to assist in answering some of your questions regarding the patenting process.
Click here for our Designs Brochure which provides more information regarding the filing of design applications, if applicable.
The drafting of a patent specification or a design application is best done by registered patent attorneys. Our charges for the drafting and filing of a provisional patent application at the South African Patent Office range between R10000 and R15000 and depends on the complexity of the invention. This includes the official Patent Office fee, as well as the costs of all drawings, which are done by our draughtsman. As such, we do not require formal drawings from you - merely a good description of the invention and some freehand drawings. It usually takes about 20 working days for the preparation and forwarding of the specification to you for approval prior to filing.
If all goes well and there is a market for your product, you should, within 12 months from the date of filing of the provisional patent application, file a so-called complete patent application which, in South Africa, will be about 30% more than the cost for drafting and filing of the provisional patent application. Foreign patent applications also need to be filed at such time, given a reasonable possibility of success in a foreign market.
Design registrations, if suitable, cost in the region of R4500 for the first application, and R4000 for subsequent registrations filed at the same time.
4. Click here and complete our Invention Description Form (IDF) so that we may provide you with a more accurate cost estimate. We will be able to provide you with information regarding the suitability of your invention for design protection upon receipt of the completed IDF. The IDF also contains the website addresses of the US and EU patent offices, where you may conduct your own patent and design searches to obtain an indication of whether your idea already exists.
5. Our communications with our clients are subject to attorney/client privilege and are treated in a highly confidential manner.
6. We look forward to hearing from you. Please keep the invention secret until it has been protected.
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Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and colour in three dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
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While trademark law seeks to protect indications of the commercial source of products or services, patent law generally seeks to protect new and useful inventions, and registered designs law generally seeks to protect the look or appearance of a manufactured article. Trademarks, patents and designs collectively form a subset of intellectual property known as industrial property because they are often created and used in an industrial or commercial context.
By comparison, copyright law generally seeks to protect original literary, artistic and other creative works. A trademark also does not expire (if it is re-registered), whereas international copyright law (which varies from country to country) usually lasts the duration of the author's lifespan plus 50 years. This can lead to confusion in cases where a work passes into the public domain but the character in question remains a registered trademark.
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April 1, 2009 | Designs
In South Africa, commercial artists and product innovators should safeguard their design rights by registering them with the South African Design Office in Pretoria. As with patents and trademarks, experts recommend designers retain patent attorneys to manage all the technical, legal details and processes. Patent attorneys very strongly recommend that designers should not market or sell their unique materials until they have protected their design rights by registering their creations.
In South Africa, visionaries can safeguard their design rights in one of two major categories. Registration will protect a developer’s rights to a design developed primarily for aesthetic appeal, or it will protect design rights for a product that depends on its unique shape, colour, and texture for its function. In a case where a gifted craftsman has developed a design with both aesthetic and function value, patent attorneys recommend registering the design in both classes.
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