Obtaining a patent in South Africa is essentially a two-step process, with the two steps being spaced 12 months apart. Once a complete patent application has been filed, it is impossible to add additional matter. The reason for this two-step approach to patents is therefore to give you time to improve your invention.
Furthermore, any modifications that you make to the invention as contained in the provisional patent specification must be kept secret until such modifications have been captured in a second provisional patent application or are included in the eventual patent application.
Step 1 – Provisional Patent Application
The first step is to file a South African provisional patent application for your invention. This is done to obtain the earliest possible date from which to claim rights to your invention – much like an option to protect your invention. It is important to note that patents are territorial rights – a patent granted in South Africa can be enforced in South Africa only.
However, you may, within 12 months of filing your South African provisional patent, file foreign patent applications based on your provisional patent – however, only once each such foreign patent application has proceeded to grant will you have an enforceable patent right in any such countries.
Step 2 – Complete Patent Application
The second step is to file a complete application within 12 months of filing the provisional patent application in South Africa, and/or in each country where you wish to obtain patent protection. The patent application or applications will claim a first (or “priority”) date from your provisional patent. In other words, the rights you are protecting date back to the filing date of your South African provisional patent application. During the initial 12 month patent grace period, your rights are kept open.
It is important do a search for similar inventions before applying for patent protection. A patent search will indicate whether your idea or inventions has been patented before. Although novelty can never be determined conclusively, an indication of the novelty of your invention may be found by conducting patent and literature searches on the internet.
South Africa has an “absolute” novelty requirement, which means that similar inventions anywhere in the world will destroy the novelty of your invention, thereby forfeiting your patent rights. When a patent search is conducted one can also search for patent families. It should be noted that although database organisers do everything they can to ensure uniformity and thus the ability to retrieve all the documents related to a patent family, that some documents may still not be retrieved. Read more about Patent Search.
Patent Duration in South Africa
Non-PCT applications – 20 years from the South African filing date.
PCT national phase applications – 20 years from the filing date of the PCT International application.
Maintenance fees / Renewal fees
Annual maintenance fees are payable from the third anniversary of the filing date or from the PCT International filing date. There is a 6-month grace period to pay the maintenance fees.