Smit & Van Wyk Patent, Trademark & Registered Designs

Filing a Patent

Intellectual Property Attorneys

To file a patent for an invention in South Africa
Requirements for the invention to be considered eligible for patent rights:
– Novel, Original
– Not obvious to someone skilled in the art
– Applicable in industry, commerce or agriculture
– Involve an inventive step.
There may not be an application or registered patent for similar, and it may not have been in use anywhere in the world prior to the provisional application date. It may not have been disclosed publicly before the initial patent filing date.

Public disclosure prior to a patent filing
Any disclosure to the general public or a member of public not involved in the invention by means of broadcasting, advertising, articles, usage, demonstrations, bulletin boards, and news announcements is a public disclosure. Even posters, abstracts, talks at meetings and unprotected emails can form part of public disclosures. For a public disclosure sufficient information must have been supplied to duplicate the invention.

Not patentable
Business methods, methods of performing mental acts, mathematical formulas, discoveries, methods of treating humans or animals through therapy or surgery, biological processes, organism metabolism, presentations of information, rules for playing a game, as well as animals and plants not genetically modified and scientific theories cannot be patented, but are protected under other intellectual property laws.

Filing a Patent

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.

Step 2 – Complete Patent Application
The second step is to file a complete patent 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 complete patent application or applications will claim a first (or “priority”) date from your provisional patent application. 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.

Time & Dates
Patents are time and date sensitive. You have 12 months in which to file a complete patent application based on your South African provisional patent application. However, should you wish to proceed with the filing of a complete patent application, it is important that you contact us within 10 months or so of filing your provisional patent application in order to give us sufficient time to draft and prepare a complete patent application for your invention – failure to do so will result in a surcharge being levied for urgency. In addition, failure to file a patent application or patent applications within the set deadlines may result in your patent rights being forfeited. A 3 month extension period beyond the 12 month deadline is available in South Africa only for filing a South African complete patent application. This is not available in other countries. You may claim patent priority in a foreign patent application from a South African provisional patent application, but only within 12 months from the date of filing such South African provisional patent application.

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More information regarding Intellectual Property:

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