Patent Protection in the United States of America

In simple terms, any person who invents or discovers a new and useful process or composition of matter (or any new and useful improvement thereof) may obtain a patent in the United States of America, subject to certain exclusions. The “process” is defined by law as an act or method that includes an industrial or technical process and “manufacture” refers to articles that are made.

Steps to apply for patent protection in the U.S

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 for 12 months. Filing a South African provisional patent application that adequately describes the invention will establish priority and satisfies the need to act swiftly under first to file rules. Ultimately you will need to file a Complete patent application in order to obtain a patent in the United States.

2. PCT
South African residents can file a PCT application within the 12-month period from the filing date of their provisional patent application. The PCT procedure is valid for 18 months and maintains your priority date in all 145 contracting states (including the U.S). National Phase: At the end of the PCT procedure (usually at 30 months from the earliest filing date) you can file a complete patent application with the United States patent office (or any other PCT member countries in which you want to obtain protection).

3. Complete Patent Application
File a complete patent application in the United States, and/or in each country where you wish to obtain patent protection. The complete patent application will claim a first (or “priority”) date from your provisional patent application. In order to obtain a utility patent, a non-provisional application must be filed (because a provisional application will never mature into a patent).

Types of Patents

There are two types of patents granted by the U.S. Patent Office: Design patents and Utility patents:

Utility Patents
Utility patents protects the functional aspects of an invention and can provide broad patent protection. Utility patents are capable of protecting many different variations of a product with a single patent. Does not protect the ornamental features of an invention.

Design Patents
Protects the appearance and design of an invention. Design patents do not protect the functional features of an invention.

Patent Requirements

Useful
“Useful” refers to the condition that the subject matter has a useful purpose and should be able to perform the intended purpose. If the invention is not useful, it would not be granted a patent. A patent cannot be obtained upon a mere idea or suggestion, and therefore a complete description of the actual machine or other subject matter for which a patent is sought is required.

New
For an invention to be “new” as defined in the patent law, which provides that an invention cannot be patented if the claimed invention was available to the public before the effective filing date or was described in a patent open to the public, anywhere in the world.

Patent Exclusions

The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon. Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

Information Required for Application
Provisional Patent Application

A provisional patent application allows you to file without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement.

Non-provisional Patent Application

An applicant who files a provisional application must file a corresponding non-provisional application for patent.
– A written document which comprises a specification (description and claims).
– Drawings (when necessary).
– An oath or declaration.
– Filing, search, and examination fees.

All application documents must be in the English language or a translation into the English language will be required along with the required fee

Details of the invention
We need a full, detailed technical description of the invention in order to draft a patent specification. If you have a prototype or drawings of your invention, this would also suffice, together with a description of the functions it performs and the distinguishing features of your invention. It is of critical importance that we include as much detail in the patent specification as possible, to ensure that all embodiments and features of the invention are protected in the patent application. As you are the expert when it comes to your invention, we will draft the patent specification, forward it to you for approval and comment, and only file the patent application once we have received such approval.

Details of the inventors
In terms of the South African Patents Act, we need the full names and residential address of the inventor or inventors that contributed inventively to the invention.

Details of the Patent applicant / Patentee
Patents can be filed in the name of a person, such as the inventor, or a legal entity, such as a company. As such, we need the full names of the patent applicant, or patent applicants and their residential address(es), or if the patent applicant is a legal entity, we need the name of the entity and its registered address.

Details of our client
In terms of the Financial Intelligence Centre Act, we need to identify who our client is. Therefore, you need to supply us with your full contact details. In this regard, the information needed should comply to the requirements of the Financial Intelligence Centre Act.

Patent Search

It is very important for applicants to search for similar inventions before applying for a Patent. A Patent Search will indicate whether your idea or inventions has been patented before. Although novelty can never be determined conclusively, an indication of the novelty of your invention may be found by conducting patent and literature searches on the internet. Patent Attorneys may conduct a search for your Invention, but you may also search for similar patents yourself. Visit the following links to search for similar Patents:

Web links for United States patent search

Google Patent Search

Google Advanced Patent Search

United States Patent and Treademark Office Search

European Patent Office Search

Global Patent Index

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Contact one of our patent attorneys for more information regarding services related to patent applications and renewals in the United States of America. Call us: +27 (0) 12 349 7800 or

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Wessel van Wyk

Wessel van Wyk

Chantal Hoffelner

Chantal Hoffelner