In South African Patent Law, a patent is an exclusive right conferred for a specific period
of time to an inventor or other entitled person in exchange for the full disclosure of the
invention to the public. A patent is regarded as property and it may be sold by assignment to
another party, or it may be licensed for other people’s use by means of a license agreement.
In such an agreement the holder of the patent retains all rights of ownership and the
licensee has the right to use the invention for a fee. The Patents Act of 1978 governs
Patent Law in South Africa. Through this act Letters Patent may be issued to an applicant
conferring monopoly rights to him or her in respect of a new invention.
Patents provide the patentee with the right to prevent all others from exploiting the
invention for the life of the patent in whichever country it is granted, which in South Africa
is usually 20 years from the date of the complete patent application being filed.
All patent
rights are territorial, so a patent conferred in South Africa is only valid in South Africa.
If the inventor wishes to obtain protection outside South Africa he or she must apply for
patent rights in each country where protection is required.
The patent merely gives the
right to exclude others from selling, using, making or offering for sale the invention,
and it is up to the patentee to enforce the rights thereof without reference to the
Patents Office.
In order for an invention to be patentable, it must be novel, it must be useful, and it must
not be so obvious that a skilled technician would consider it to have been obvious at the time
of filing the application.
The invention cannot be patented if it was made known to the public
or secretly applied before the patent was applied for. It must be useful within either
agriculture, commerce or industry. It is essential that there is no disclosure of the invention
to the public before filing an application for a patent.
Any disclosure to the public would
render the invention no longer patentable (except in certain very specific cases). This includes
disclosure by word of mouth or in print. It is most important to guard against mentioning the
invention casually at a meeting, in unprotected e-mails, on posters or in an abstract.
The first step in applying for a patent in South Africa is to apply for a provisional patent.
The granting of this does not provide the inventor with an enforceable right and so the inventor
may not take steps to prevent other people from exploiting the invention. It is merely there
to protect the invention while its potential is tested.
Patent Law states that only when a
complete patent has been filed and grant by the Patent Office and has been posted in the
Patent Journal are the full rights of the patent passed to the inventor.
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