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 important to keep your idea a secret because a patent may only be granted for an idea that is new, inventive and useful. If your idea meets these requirements, generally, it should be eligible for protection in terms of South African patent law, but once you reveal your idea to the public, or start selling the invention, you may not apply for protection. 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.
- Search for similar Inventions. South Africa has an “absolute” novelty requirement, which means that similar inventions anywhere in the world will destroy the novelty of your idea, thereby forfeiting your rights. It is important to do a patent search before applying for a patent.
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.
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.