The Patent Law in South Africa requires that an invention meets three important conditions: Novelty, Usefulness and Inventiveness. Under the Patent Law the invention must be completely new. As such the patent lawyers will conduct a novelty search in trade magazines, online, through databases, and newspapers around the world to establish whether any reporting was done on the invention prior to filing for patent rights. In addition the Patent Law requires that the invention must not be obvious to someone skilled in the specific subject area and it must be useful. Inventing something that cannot be used in commerce, medicine or for instance agriculture will thus not constitute the right to a patent. The best way to ensure successful filing and granting of a patent is to go through patent attorneys when applying for patent rights.
Step 1 – Provisional Patent Application
The first step is to file a South African provisional patent application for your invention. This is done to obtain the earliest possible date from which to claim rights to your invention – much like an option to protect your invention.
Step 2 – Complete Patent Application
The second step is to file a complete patent application within 12 months of filing the provisional patent application in South Africa, and/or in each country where you wish to obtain patent protection. The complete patent application or applications will claim a first (or “priority”) date from your provisional patent application. In other words, the rights you are protecting date back to the filing date of your South African provisional patent application. During the initial 12 month patent grace period, your rights are kept open.
Inventions which cannot be the subject of a Patent in South Africa
Exclusions as inventions in terms of the South African Patents Act:
Anything which consists of a discovery; a scientific theory; a mathematical method; a literary; dramatic, musical or artistic work; or any aesthetic creation; a scheme, rule, or method for performing a mental act; playing a game, or doing business; a program for a computer; or the presentation of information, are not considered an invention and can therefore not be patented in terms of the South African Patents Act. In certain circumstances you may still consider filing a South African provisional patent application, even though there may be uncertainty about the definition of the invention. The reason for this is that the above exclusions are interpreted restrictively (i.e. they exclude only the listed inventions as such from being patented). Also, this section of the South African Patents Act has not been subject to litigation in such a degree that clear precedents which can be followed have been set in all the above categories. Further, because of an increasing number of patents being granted in other countries for inventions that are excluded in terms of the South African Patents Act (such as software and business methods), a South African provisional patent application may be used to establish priority rights for the invention that may, within 12 months, be prosecuted in other countries where some of these categories of inventions are patentable (such as in the USA and in Europe).
Other inventions for which a South African patent will not be granted:
Inventions that are likely to encourage offensive or immoral behavior cannot be protected by way of a Patent. Also, inventions which are frivolous and contrary to the known laws of nature, such as perpetual motion machines, are excluded from patentability. Inventions relating to methods of treatment, therapy or diagnosis to be performed on the human or animal body, as such, are not considered patentable, but compounds or compositions for use in such methods may be patented. In addition a patent cannot be granted for products of biological processes which are not essentially microbiological in nature.