Identification of Patentable subject matter

If you are an inventor who is frequently inventing new gadgets it may be difficult to identify whether a new invention can be patented, or indeed whether it has already been patented beforehand. For any new invention to be patentable it has to comply with three separate prerequisites, and it is necessary to identify whether it does this or not. Applications for new patents are subject to scrutiny by the Patent Office in Pretoria, although inventions are only check for formalities, and not on the merits of the invention. Foreign Patent Offices are usually examining offices and they will examine the patent to determine whether it meets the requirements for patentability. After receiving your application, such examining Patent Offices will check:

• To see if the invention is based on a technical idea that uses a law of nature.
• To see if it is useful in industry, commerce or agriculture.
• To see if the technical idea existed before the filing of the application, i.e. whether it is new.
• To see if a person skilled in the art could have easily invented the invention, i.e whether it is inventive or not.
• To see if the applicant is the first to file for this invention.
• To identify whether the invention is liable to contravene public order and morality.

If the invention complies with all requirements then you should be granted patent rights.

Before even making the first application for a provisional patent, it is necessary to identify whether the invention has been described in prior art (“prior art” means all information that has been made available to the public in any form before the date of filing your application). If prior art is identified which is exactly the same as your invention then a patent cannot be granted for that invention. The search for prior art may be carried out at the CIPRO offices in Pretoria and can be conducted by the inventor himself or by his agent or patent attorney. If they cannot identify any directly anticipatory prior art then the next step is to file an application for a provisional patent. This application can be made by the inventor alone, but is better carried out by a patent attorney because of their ability to use the correct wording in the technical description of the invention, which must be precise.

If and when the provisional patent has been granted, the patentee has twelve months in which to identify a market for the product and to test it. Before the twelve month period elapses the patentee must file an application for a full patent. This has to be done by a patent attorney, in terms of South African law. When granted, the patent must be published in the Patent Journal so that others in future may identify it in their prior art searches. The patent, when granted, is a limited property right that the State offers to inventors in exchange for their agreement to share the details of their inventions with the public. Like any other property right it may be sold, licensed, mortgaged, assigned or transferred, given away, or even just abandoned.