The term "patent" originates from the Latin word patere, which means "to lay open" or to make available for public inspection, and the term letters patent originally denoted royal decrees granting exclusive rights to certain individuals or businesses.
Patents are sets of exclusive rights conferred upon patentees by the State for a fixed period of time in exchange for disclosing to the public certain details of the invention, which must be new and innovative.
These rights do not give the patentee the right to make or use the invention himself, but they do prevent others from using it in any way without first obtaining a license from the inventor. Patents are property rights, and as such they may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned at any time.
The first step in applying for a patent in South Africa is to carry out a Novelty Search. This is done through on-line databases, and Smit & van Wyk can be contacted to conduct such searches. One may also wish to conduct local infringement (also called “freedom to operate” searches) at CIPRO’s offices in their paper based Disclosure Centre.
This search is a manual search to make sure that the invention or anything similar has not already been patented in the country. Smit & Van Wyk regularly carry out such searches on behalf of their clients, as we have experience in carrying out these searches and know what to look for and where.
Once an indication of the novelty of the invention has been obtained, then the inventor can proceed to the next step, which is filing for a provisional patent.
The inventor of an invention may apply for a provisional patent himself or herself, but this is usually not a good idea, as the drafting of a patent specification is a specialized undertaking for which patent attorneys undergo many years of training. One of the requirements is that an applicant must provide a written description of the invention in sufficient detail for a person skilled in the field of the invention to make and use that invention.
This written description is provided in the patent specification, and is accompanied by drawings that show how the invention is made and how it operates. For these reasons it is advisable to employ the services of a patent attorney to draw up the application.
The provisional patent application is valid for 12 months, which allows the applicant to test both the invention and the marketplace while securing the rights to their invention.
Within 12 months of obtaining the provisional patent, and if the applicant decides it is worth proceeding, the applicant should apply for a full patent. By law, a patent attorney must draw up this application.
A full patent issued by CIPRO is only valid in South Africa. If the applicant seeks protection in other countries then he or she should file for patent protection separately in each of those countries, or as an initial step through the PCT (Patent Co-operation Treaty) international filing system. Once the full patent is granted it is advertised in the Patent Journal.
The patent needs to be renewed annually to prevent it from lapsing.s
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