Patent Protection in South Africa
In simple terms, a South African patent may be granted for an invention that is: New, Inventive and Useful. If your invention meets these three requirements, generally, subject to certain exclusions detailed below, a patent may be granted for the invention in terms of South African patent law. Obtaining a patent is essentially a two-step process, with the two steps being spaced 12 months apart. Complete patent applications are more expensive to file than provisional patent applications and it is not possible to add additional matter to a complete patent application once it has been filed. The reason for this two-step approach to patents is therefore to give you time to determine if there is a market for your invention, and also to give you time to refine your invention into its “perfected” form prior to filing a complete patent application. Furthermore, it must be borne in mind that any modifications that you make to the invention as contained in the provisional patent 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.
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.
Patent Application Number
In South Africa, if a provisional patent application has been filed, the article may be marked with the words “Provisional Patent application number” followed by the patent application number. If a patent has been granted an article may be marked with the words “Patent number” followed by the patent number. It is not permissible to mark an article as above if a patent application has not been filed, or if a patent has not been granted.
Time & Dates
Patents are time and date sensitive. You have 12 months in which to file a complete patent application based on your South African provisional patent application. However, should you wish to proceed with the filing of a complete patent application, it is important that you contact us within 10 months or so of filing your provisional patent application in order to give us sufficient time to draft and prepare a complete patent application for your invention – failure to do so will result in a surcharge being levied for urgency. In addition, failure to file a patent application or patent applications within the set deadlines may result in your patent rights being forfeited. A 3 month extension period beyond the 12 month deadline is available in South Africa only for filing a South African complete patent application. This is not available in other countries. You may claim patent priority in a foreign patent application from a South African provisional patent application, but only within 12 months from the date of filing such South African provisional patent application.
Contact one of our patent attorneys for more information regarding services related to patent applications, renewals and litigation in South Africa. Call us: +27 (0) 12 349 7800 or