A patent is an exclusive right granted for an invention, which is a product or a process that provides a new and inventive way of doing something, or offers a new technical solution to a problem.
A patent provides protection for the patent owner, which gives him/her the right to exclude others from making use of that invention in any way without the consent of the owner of the patent, also called the patentee, or patent applicant.
The protection is granted for a limited period, generally 20 years and is a territorial right, in other words patents can only be enforced in the countries in which they have been granted.
Patents in South Africa are conferred by the South Africa Patent Office, itself part of the Companies and Intellectual Property Registration Office (CIPRO), which in turn is a division of the Department of Trade and Industry.
The forms that need to accompany a provisional patent application and that will be prepared by Smit & Van Wyk are the following:
- P1: Application for a Patent and Acknowledgement of Receipt and should be submitted in duplicate;
- P2: Register of Patents also to be submitted in duplicate
- P3: Declaration of Power of Attorney, 1 only to be submitted
- P6: Provisional Specification.
These forms need to be submitted along with a detailed technical description of the invention and drawings, if required.
The wording of the description is extremely important, and it is strongly advisable to engage the services of a qualified Patent Attorney to write and file the patent application on your behalf.
The provisional patent application is valid for a period of 12 months. This period will give you the opportunity to evaluate your invention and to commence manufacture and marketing. When you are quite confident that the invention is going to be successful, then an application can be made for a complete patent in South Africa.
This final application has to be made through a patent attorney. You may also wish to consider the filing of international patent application and this can be done either by filing in each country individually (the traditional system) or by way of the PCT (Patent Co-operation Treaty) international filing system.
A South African application is valid only in South Africa, and if you want protection in, say, Europe, Japan and the United States, then applications must be filed in each such countries/territories separately.
Bear in mind that one only has an enforceable patent right in a country once it has been filed and granted in each such country. After the granting of the complete patent the patent will be valid for 20 years but it must be renewed annually, else it will lapse.
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