No matter how good an invention may be, a patent right cannot be granted unless it is first applied for. An application should be filed only after it has been established that the invention is novel. If it can be established that the invention has already been described in prior art, then the invention is not novel and hence unpatentable.
Most countries have adopted the so-called first-to-file system. That is to say that if two parties happen to apply for a patent for the same invention, the patent right would be granted to the first of the two to have filed a patent application.
Some countries though, notably the United States of America, use the first-to-invent system, eliminating the possibility of a second person “stealing” the invention and filing for patent right before the actual inventor.
It is very important not to disclose any information regarding the invention to anyone other than the patent attorney who is applying for patent rights on your behalf. A patent right can be an extremely valuable piece of property and so any idle chat or disclosure can potentially cost you a tidy sum of money. You should therefore not only keep the invention details secret, but you should also file for patent rights as soon as possible after inventing the invention.
To be patentable, your invention must meet the following requirements:
- The invention must be based on a technical idea that is not contrary to any laws of nature (such as so-called perpetual motion machines).
- It must have industrial, commercial or agricultural applicability.
- It must be new, i.e. the idea must not have been available in the public domain before the filing of the application.
- It must be inventive, as judged by a hypothetical person skilled in the art of the invention.
- You must be the first to file.
- Your invention must not contain subject matter liable to contravene public order and morality.
- The description must be sufficient to allow another person to make the invention without undue experimentation (they are not allowed to do so, however, as you have a monopoly right once the patent is granted, but it is nonetheless a requirement of patent law that a full disclosure must be made.
If the invention complies with all requirements then you should be granted patent right after a complete patent application has been filed.
What exactly are patent rights? A patent is a set of exclusive rights that enables you to exclude anyone from making, using, selling or offering for sale the patented invention without your express permission.
A patent right is regarded as property and in terms of our law it may be disposed of in the same way as property. So it may be licensed out for the use of others; it may be sold, assigned or transferred, mortgaged, given away, or even just abandoned.
By these means you can enjoy all of the profit from your invention for the duration of the patent rights - in the case of South Africa this is for 20 years. If someone contravenes your rights there is no call upon the Patent Office.
I would be up to you to consult a lawyer and to sue the offending party in the civil courts.
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