South Africa Patent Laws favour the usage of attorneys even though it is possible to file a patent application directly without the usage of a patent lawyer or attorney, it cannot be recommended. The reason is simple, the South African Patent Office is a non-investigating office which means that you can complete the application, file it and even receive the patent right upon payment of the required fees without the invention complying with all the requirements. It is not a loophole in the system.

It simply means that the responsibility lies with the applicant to ensure that the invention is indeed patentable and that the application will be done correctly. The snag comes in when another applicant or company questions the patentability of the invention down the line or argues that the idea was not original at all. Lawsuits may follow and all the money already spent in the commercial development of the patent may be lost forever.

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.

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.