Step-by-step guide on how to patent an idea. Qualified patent attorneys specialise in the identification, protection, prosecution and enforcement of patents. An Attorney who has this qualification is entitled to register and file a patent in South Africa. The South African Patent Office will check to see if all the necessary forms, specifications and drawings are included in the application. An invalid patent can be revoked on application to the Court of the Commissioner of Patents.
First Steps to Patent an Idea
- Keep Your Idea a Secret: It is essential to keep your invention confidential until a patent application has been filed. Under South African patent law, a patent may only be granted for an invention that is new, inventive, and capable of being used in trade, industry, or agriculture. Publicly disclosing or selling your invention before filing may destroy its novelty and prevent you from obtaining valid protection.
- Search for Similar Inventions: South Africa follows an absolute novelty requirement. This means that if your invention has been disclosed anywhere in the world before your filing date, you will lose the right to patent it. Conducting a patent search before applying helps determine whether similar inventions already exist and can save time and cost.
- File a Provisional Patent Application: If your invention appears to be new and inventive, the first formal step is to file a provisional patent application with the Companies and Intellectual Property Commission (CIPC). This application establishes a priority date for your invention and provides you with 12 months of temporary protection while you further develop or test your idea. The application must include:
- Form P1 (Provisional Application)
- Form P2 (Statement of Inventorship)
- Drawings or illustrations showing the invention
- File a Complete Patent Application: Within 12 months from the filing date of your provisional patent application, you must file a complete patent application in South Africa or in other countries where you seek protection. This complete specification fully describes and defines your invention in legal terms. It is recommended that you contact your patent attorney about 10 months after filing your provisional application to allow enough time for preparation and drafting. Late instructions may result in additional costs for urgent filing.
- Maintain Deadlines and Rights: Failure to file your complete application within the prescribed 12-month period will result in the loss of your priority date and forfeiture of your patent rights. Patent protection is strictly time and date sensitive, and missing deadlines cannot be remedied later.
What is a Provisional Patent Application?
Obtaining a patent is a two-step process that is spaced 12 months apart. The reason for this approach is therefore to give you time to determine the market for your invention, and also to give you time to refine and improve your invention prior to filing a complete patent application.
Important Note: Any modifications that you make to the invention during this time, must also be kept secret until such modifications have been captured in a second provisional patent application or are included in the eventual complete patent application.
What is a 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 in each country where you wish to obtain protection. The rights you are protecting will date back to the filing date of your South African provisional patent application, and during the initial 12 month grace period, your rights are kept open.
Patents are territorial rights which means that patents granted in South Africa can only be enforced in South Africa. You have to file a patent application in each country in which you wish to protect your idea.
PCT National Phase Application
A PCT National Phase entry provides a unified procedure for filing patent applications to protect intellectual property in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application. A single filing of an international application is made with a Receiving Office (RO) in one language.
It then results in a search performed by an International Searching Authority (ISA), accompanied by a written opinion regarding the patentability of the invention, which is the subject of the application.
The PCT National Phase entry essentially leads to a standard national or regional patent application, which may be granted or rejected according to applicable law, in each jurisdiction in which protection is desired. The Contracting states which are parties to the PCT, constitute the International Patent Cooperation Union.
