A patent is a set of exclusive rights granted by a state to the owner of an invention for a fixed period of time (in South Africa 20 years) in exchange for the regulated, public disclosure of certain details about the invention, which has to be novel, inventive, and useful in commerce, industry or agriculture in order to be patentable.
In South Africa the owner of an invention may apply for a patent at the CIPRO (Companies and Intellectual Property Registration Office), a division of the Department of Trade and Industry in Pretoria.
So how do you go about becoming a patent owner, also called a patentee?
The first step towards becoming a patentee is to carry out a search for existing patents. There is no point in applying for a patent for your invention if it already exists. A search has to be carried out to determine that there are no existing patents that will be violated and that your invention is, in fact, new.
Either you or your patent attorney may carry out this search in the CIPRO offices in Pretoria. Provided that there is no prior patent or other disclosure anywhere in the world, you should go ahead with the next step, which is to apply for a provisional patent application. Filing a provisional patent application may be done either by yourself or through a patent attorney. The latter is the advisable route to take because of the legal jargon and of the experience that a patent attorney has in these matter. For this application you will need the following forms:
- P1 – Application for Patent and Acknowledgment of Receipt. (duplicate)
- P2 – Register of Patents (duplicate)
- P3 – Power of Attorney (If using an attorney or agent)
- P4 – Provisional specification
All documents should be typed or printed. It is most important that the description of the specification is comprehensive and clear, and where applicable, drawings must be attached. There is a small fee payable for a provisional application.
Once you are the owner of a provisional patent application, you have twelve months from the date of filing the provisional patent application in which to apply for a full patent, usually called a complete patent.
During this time you, the inventor, are able to work on your invention and can test the market to assess the practicality of the invention before committing yourself to incurring the costs involved in filing a complete patent application.
If, as the provisional patent owner, you are applying for a complete patent, the assistance of a Patent Attorney is required in terms of the South African Patents Act 57 of 1978. Forms P1, P2, P3 must be completed and submitted along with the fee, which is R266. The application is filed with a full detailed description and specifications along with drawings.
You should give consideration to applying for patent rights in countries other than South Africa. PCT (Patent Co-operation Treaty) applications are regarded as complete applications and may defer the costs of filing patent applications in individual foreign countries by up to 18 or 19 months.
Once a complete patent application has been lodged, a formal examination commences. This process usually takes about 6 months in South Africa – no examination is conducted as to the merits of the invention.
If all the formalities have been complied with, the application is accepted. The applicant/patent owner is then required to publish the patent in the Patents Journal, which is published monthly by the government printers – Smit & Van Wyk Intellectual Property practitioners will take care of this on your behalf.
If after 3 months there are no objections, the Patents Registrar will issue a Patent Certificate and you will be granted a patent.
|
