Patent Exclusions

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. For further information in this regard, please refer to our Biotech page.

More information regarding Patents

Patents – 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…

Biotech Patents – Research and development in the life sciences is extremely costly and time-consuming. The pharmaceutical industry provides a good example of the time-scales and funding one needs in order to bring…

International Patent Protection – It is important to note that patents are territorial rights – a patent granted in South Africa can be enforced in South Africa only. However, you may, within 12 months…

Software Patents – Historically, software has been protected primarily through the provisions in the South African Copyright Act. Examples of subject matter for copyright protection of computer programs and mobile apps are…

Requirements for Patent Application – 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…

Plant and Animal Sciences – According to the patent laws of several countries, one cannot obtain biotechnological patent protection for plant or animal varieties, or essentially biological processes for the production of plants or animals…

Patent Search – It is very important for applicants to do a patent search for similar inventions before applying for protection. A Patent Search will indicate whether your idea or inventions has been patented before. Although novelty can never be determined…

Patent Requirements – Although novelty can never be determined conclusively, an indication of the novelty of your invention may be found by conducting patent and literature searches. South Africa has a so-called…

Patent Costs – A novelty search is conducted prior to filing a Provisional Patent Application to identify potentially novel and/or inventive aspects of an invention in light of what already exists (i.e. the prior art)…

Patent Exclusions –  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…