Archive for the ‘Patent Attorneys’ Category
The entrepreneurial spirit of the Griffiths family
Windmills dot the South African landscape. Few of us realise what an interesting history the modern day windmill has and how it came to use in South Africa. This article tells the history of the modern-day windmill and the impact it had on our economies.
No Comments »
Smit & Van Wyk Inc.
What is a patent?
Stripped of legal speak, a patent is a 20 year monopoly granted to an inventor by the State.
What is patentable?
You must have originated something that is:
• New;
• Inventive; and
• Useful
If your invention meets these three requirements, generally it will be considered patentable, object to certain exceptions discussed below.
How do I know if my invention is “new”?
An indication of the novelty of your invention may be obtained by conducting patent and literature searches. This will show whether anyone has brought an invention identical to yours into the public domain. South Africa has a socalled absolute novelty requirement – this means that even the inventor may unwittingly have destroyed the novelty of his/her own invention by disclosing it prior to obtaining patent protection. However, reasonable technical trials maysometimes be excused.
What is considered “inventive”?
Even if your invention is new (i.e. there is nothing identical to it in the public domain), then there may still be other products that are similar to your invention (also know as the “prior art”). To determine whether your invention may be considered inventive, one has to ask whether someone skilled in the field of the invention would have considered your invention to have been obvious. This is usually a very subjective assessment and the decision to patent is sometimes dictated more by business strategy than by obviousness considerations.
Utility – must my invention have a use?
Yes - this is generally the easiest patenting hurdle to overcome, as a use can be found in trade, industry or agriculture for most inventions that are considered new and inventive.
I have created something new, inventive and useful – what next?
Speak to us about preparing and filing a patent application for your invention. However, you must keep your invention secret until you have filed a patent application to avoid destroying the novelty thereof. Remember that the patentability of your invention is no guarantee of commercial success.
What is NOT patentable?
Traditionally, software and business methods have not been considered to be patentable under South African law. However, due to increasing numbers of patents being granted for software and business method inventions in the USA and Europe, we trust that South African courts will soon rule favourably on this matter. In addition, games, mathematical methods, discoveries, artistic, musical or dramatic works, methods of performing mental acts and the presentation of information are not considered patentable under SA law. Similarly, inventions that will encourage offensive or immoral behaviour are also excluded from patentability, together with frivolous inventions like perpetual motion machines. In the medical and biological sciences, methods of treatment, therapy or diagnosis performed on humans or animals are not considered patentable, nor are products of biological processes which are not essentially microbiological in nature. For further information in this regard, please refer to our Life Sciences brochure.
Can I obtain patent protection for something I saw at a show or in a foreign country?
No. Except for the fact that you cannot claim someone else’s invention as your own, the invention will no longer be considered “new” under SA law. Only the actual inventor and/or any person to whom he/she has assigned the patent may apply for patent protection. It may, however, still be possible for you to exploit the invention in SA, provided it has not been patented in this country. Speak to your patent attorney regarding the conducting of infringement and state of the art searches. Alternatively, may apply to the patentee for a license to exploit the invention in protected areas.
How do I obtain a patent?
Patenting is essentially a two step process, with the two steps being spaced 12 months apart. The first step is to file a provisional patent application for your invention. This is done so that you may have the earliest possible date from which to claim rights to your intellectual creation – similar to an option to protect your invention. The second step is to file a complete patent application within 12 months of filing the provisional application. This application will claim a first (or “priority”) date from your provisional application. In other words, the rights you are protecting date back to the filing date of your provisional application – you do not lose any rights in the interim 12 month period.
Why this two step approach?
Complete applications are more expensive to file than provisional applications and it is not possible to add additional matter to a complete application once it has been filed. The reason for this two-step approach is therefore to give you time to (cost-effectively) see whether there is a market for your invention without losing any rights, as well as to give you time to hone your invention into its “perfected” form. Thus, the filing of a provisional patent application is a sensible, costeffective way of testing the waters. Furthermore, it must be borne in mind that any modifications that you make to the invention as contained in the provisional specification must be kept secret until such modifications have been captured in a second provisional patent application or are included in the eventual complete patent application. As you develop your invention, your patent portfolio must keep abreast as well.
Must I file a complete patent application?
It is important to note that a provisional patent application does not provide you with an enforceable right - it is
merely a device which allows you to test the market without destroying the novelty of you invention. You only have an enforceable right once you have filed a complete patent application for the final form of your invention and it has been granted by the Patent Office. However, should your competitors start copying your invention while your application is still pending, it is possible to expedite the granting of your patent at the Patent Office. Annual maintenance fees must then be paid to keep the patent in force, failing which the patent lapses and you lose your rights to the invention.
What does “Patent Pending” on articles refer to?
This refers to a patent application that has not yet proceeded ...
No Comments »
Patent applicants are well aware of the fact that applying for patent rights in Europe may mean several years wait before applications will be approved. In fact, the average waiting time for European patents at the European Patent Office is about seven years where it will only take about 12 months for an application to be approved in many countries including South Africa. Several suggestions have been made to reduce the backlog one of which has sparked another debate. The suggestion was that instead of applying in various countries such as the UK, you should only need to apply at the EPO. The problem with the suggestion is that it would overload the already heavy laden EPO and cause even further delays. The debate continues, but if you plan to take your patent international the best way would be through an Intellectual Property Attorney such as Smit & Van Wyk that knows the system and thus will ensure that your patent doesn’t get caught up in the system.
No Comments »
Patenting in South Africa is done through CIPRO, which stands for Companies and Intellectual Properties Registration Office. It is the office that handles all patenting in South Africa applications. It is however, important to note that CIPRO is a non-investigating office, unlike many overseas Patent Offices. This means that the patent applicant has the responsibility of making sure that the invention is new, original and complies with all the regulations as stipulated. It is thus important to make use of patent attorneys that will assess the patentability of a new application. Patenting in South Africa is managed on the principle that patents stimulate economic competition and growth. It is also for this reason why software for instance, does not automatically fall under patent laws. There is much controversy about the topic whether software should be patentable or not. You are advised to contact Intellectual Property Lawyers should you wish to get protection for your work on a software program.
No Comments »
The SAIIPL came into being as far back as 1954. SAIIPL stands for South African Institute of Intellectual Property Law. It represents 140 patent and intellectual property lawyers. Members of SAIIPL are governed by a set of ethical codes and rules pertaining to their conduct ensuring that members of public are protected against unethical actions by lawyers. Being part of the SAIIPL with its code of conduct which is adapted from to time, means that a lawyer firm will act in an ethical manner at all times. The member for instance, agrees not to disclose information received from a client or obtained on behalf of a client. The member will act within the boundaries of the law, in the best interest of their clients and the profession as a whole. When you thus make use of lawyers that are members of SAIIPL you have the assurance of professional conduct at all times.
No Comments »
Many people have inventions, but don’t know or understand the exact procedures regarding patenting. Even more don’t want to pay the initial consultation fee as their budgets are limited. To this effect CIPRO and SAIIPL of which Smit & Van Wyk is a member firm, makes it possible for inventors to obtain basic free patent information by consultation with a registered Patent attorney. The free patent information consultation is available every second and last Wednesday of the month at the CIPRO office. You can contact the CIPRO office to book an appointment for a free patent information consultation. Take the first step in becoming the rightful owner of patent rights to your invention by taking hold of the opportunity. It is a 30 minute consultation, but it should be noted that any legal or professional work will be outsourced to an SAIIPL member and will be charged at the rates of the firm.
No Comments »
Inventors who create revolutionary new products naturally feel eager to market their inventions, reaping profits to which their hard work entitles them. However, if inventors take their products to market without patenting them, they remain vulnerable to devious competitors’ imitation or theft of their original designs. Therefore, every inventor should retain a patent attorney to secure his rights to his creation by having the design and device patented.
Just as importantly, inventors should seek their attorneys’ assistance with patent agreements, which license marketers and vendors to promote and sell their inventions. Between inventors and marketers, this assures striking earnings for both. Poorly performed patent agreements often cost inventors a great deal of money and their reputations. Deceitful marketers and vendors easily can influence patent agreements to pirate designs or limit inventors’ royalties. Carefully crafted patent agreements, however, protect inventors against exploitation and they guarantee acknowledgement and steady income.
No Comments »
Every enterprise inevitably produces original concepts, processes, and operating procedures. These unique creations qualify as “intellectual property,” which has commercial and strategic value for the company. In the same way that a company protects its inventing rights for the products and services it delivers, it also should protect its inventing rights for all of its intellectual property.
Surely, every company recognizes the value of its logo and registers it as a trademark; and every company recognizes the value of its premier product or service, securing a patent for it. Companies do not always so easily recognize the value of their client lists, training manuals, standard operating procedures, production guidelines, and other one-of-kind creations. They, too, represent major business assets and have financial value. Every company should secure its inventing rights to intellectual property as aggressively as it protects its inventing rights to its products.
No Comments »
A recent article published in the Nature journal about research done on bacteria that can facilitate gene transfer has highlighted the quick advances in the field of genetic patents. A group of scientists has developed an alternative to genetic modifications to plants. This open source method sidesteps the need for expensive genetic patents. With this open source method any scientist can use the technique without licenses for genetic patents. It is however, not a case of just copying and using the method. The scientists wishing to use the method must make any improvements they have made public. This is the loophole to ensure that it cannot be patented. A debate has developed around the issue regarding genetic patents where one group feels that open source methods such as the above will hinder competitive business and the other group argues that it will stimulate interactivity and improvements in the field.
No Comments »
If you have developed a new device and desire to market it, applying for a patent serves your best business interests. Patents will protect your inventions against your competitors’ duplication of your achievement.
To qualify for patents under South African law, your products must meet the tests for novelty, inventiveness, and utility. The strict standard requires “absolute novelty”—you must proof no other products comparable with yours exists anywhere in the world. Your products must stand alone in their class. In addition, your products cannot be “obvious”, which means that an ordinary craftsman in your trade would not visualize the idea for your products. Most of all, your products must be useful as abstract inventions with no practical application will not qualify for patent protection.
If you have adapted or improved upon existing products, you may qualify for patents; however, you should consult an attorney for professional advice and counsel.
No Comments »
