Although it is possible, if you are an inventor, to make the initial application for a patent yourself, it is a sensible idea to make use of patent attorneys to do the job on your behalf. This is because of the complex nature and requirements of the Patents Act.
Patent attorneys are able to give you sound advice regarding your invention and whether it constitutes patentable subject matter. In South Africa, attorneys have to pass examinations that are set by the South African Institute of Intellectual Property Law in Pretoria before they can be admitted as patent attorneys.
Having passed the exams they are bound by a code of ethics that is administered by the Institute. In addition to their law degree and the Institute examinations, patent attorneys in this country must also possess either an engineering or a science degree. The reason for this is that patent attorneys must be able to draft a technical document that accompanies an application for a patent.
Let us say that you have invented something that you think is patentable. What are the specifications that must be met in order for this to be so?
Firstly the invention must be new (or “novel”). A prior art search should preferably be carried out through published records, both locally and internationally, in order to establish that the invention is, in fact, new.
Novelty is a prerequisite in this country, and any exposure worldwide of the invention before the filing date will destroy the novelty of your invention, thereby forfeiting your patent rights. An inventor may sometimes, without knowing it, destroy the novelty of his/her invention by disclosing it prior to filing a patent application.
This novelty search is always best carried out by patent attorneys, because they know where to look and what to look for.
Patent attorneys will also be able to give you advice regarding the inventiveness of your invention – inventiveness is the second requirement for patentability. It is always possible that there have been or are similar inventions that have been disclosed to the public in patent specifications or other literature at some time in the past, somewhere in the world.
The test for ingenuity under South African patent law is to surmise whether someone skilled in the discipline of the invention (called a person who is "skilled in the art") would consider your invention to be obvious or not - an invention that is obvious to a person skilled in the art is not considered to be inventive.
Whether or not to file a South African patent application is frequently decreed more by business strategy than by the inventiveness of the invention.
Patent attorneys will tell you that the third requirement for an invention to be patentable is its usefulness.
In order for anything to be awarded a patent it must be useful in the fields of agriculture, industry or commerce. If an invention can be proven to be useful in this manner, then it can be protected by a patent, providing it meets the other two requirements.