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 “absolute” novelty requirement, which implies that any disclosure anywhere in the world before the filing date of a South African patent application will destroy the novelty of your invention, thereby forfeiting your patent rights. An inventor may sometimes unwittingly destroy the novelty of his / her own invention by disclosing it prior to filing a patent application. However, certain acts of disclosure may be excused in terms of our patent law. If you saw an invention in another country it will not be possible to obtain patent protection for the invention in terms of the South African Patents Act as you are not the inventor. In addition, in terms of the absolute novelty requirement of our Patents Act, the invention can also no longer be considered “new”. Only the actual inventor or a person to whom he / she has assigned the rights to the invention may apply for patent protection. It may, however, still be possible for you to exploit the invention in South Africa, provided it has not been protected by a patent here by the inventor thereof. In such cases you are advised to instruct us to perform an infringement (or so-called freedom to operate) search.
Even if your invention is new, there may be other similar inventions that have been disclosed to the public in patent specifications or other literature. All such disclosures are known as “prior art”. The test for inventiveness under our patent law is to conjecture whether someone skilled in the field of the invention (called a person “skilled in the art”) would consider your invention to be obvious or not – it follows that an invention that is obvious to a person skilled in the art is not considered inventive. This test is by its very nature highly subjective, and therefore the decision to file a South African patent application is often dictated more by business strategy than by considerations of the inventiveness of the invention.
Abstract inventions with no application in trade, industry or agriculture cannot be the subject of a patent in terms of South African patent law. However, if an invention has a practical use, such invention will be considered utile, and may thus be protected by way of a patent, if it also meets the novelty and inventiveness requirements set out above.
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