There are numerous important things to be taken into consideration when drafting and filing of a patent application. But what exactly is a patent?
In the words of CIPRO, The Companies and Intellectual Property Registration Office of South Africa, a patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
The patent provides protection for the patent owner (also called the patent applicant) and gives him or her the right to exclude others from making, using, exercising, disposing of the invention, offering to dispose of, or importing the invention.
The protection is granted for a limited period which, as in most countries of the world, is generally 20 years.
Although the owner of the invention himself may draft and file their own initial patent application, this is usually not a good idea. It is always advisable for applicants to seek the assistance of a patent attorney.
Patent attorneys are familiar with international requirements and are therefore in a position to draft provisional specifications in a fashion that is acceptable throughout the world, thus ensuring protection both in South Africa and overseas.
Before a provisional application is made it is important that a novelty search be conducted through specialist on-line databases to obtain an indication of whether the invention has been patented before in other countries. In addition, CIPRO’s paper based Disclosure Centre should also be searched to ensure that the proposed patent does not infringe on someone else’s patent rights in South Africa and is not anticipated by a local patent, which may also be detrimental to the patentability of an invention.
Patent attorneys or agents are much better placed to carry out this search, as they are familiar with the search procedures and regularly conduct such searches.
The provisional patent application is made to the CIPRO Offices in Pretoria. The patent application must include patent forms P1, P2 and P6 and, if being made by an attorney or agent, a P3 Power of Attorney and Declaration.
It is important that the description of the specification that goes with form P6 is comprehensive and clear, and where applicable, detailed drawings must be attached, but this will be prepared by the patent attorney and his draughtsman. Provided that the provisional patent application has been filed, a provisional patent application number is allocated and this should be affixed to all articles made in terms of the patent application.
Once filed, the patent applicant then has 12 months in which to determine whether the invention is commercially viable, following which a so-called “complete” patent application must be filed in South Africa and/or internationally.
This time limit is extendable by three months in South Africa only, upon payment of a small fee. In South Africa, which is a non-examining country, it normally takes up to 9 months to have a complete patent application accepted.
If all the formalities have been complied with, the application is then granted three months following acceptance.
The applicant, through their patent attorneys, is then required to publish an abstract of the patent in the South African Patent Journal, which is published monthly by the Government Printer.
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