Intellectual Property

South Africa
Smit & Van Wyk Patent, Trademark & Registered Designs

Patent Examination

Patent Examination in South Africa

South Africa is a non-examining country – there is no Patent Examination in South Africa. Effectively, this means that an eventual South African complete patent application will result in a patent being granted without a check to see if these requirements are met.  Such a granted South African patent will be valid until proven otherwise and may be subject to revocation based on a third party’s objection against its novelty and/or inventiveness. It is important to note that a provisional patent application will not provide you with an enforceable right – it is merely a device which allows you to test the market without destroying the novelty of you invention. You only obtain an enforceable right once you have filed a complete patent application for the final form of your invention and it has been granted by the Patent Office. Furthermore, It is important to note that patents are territorial rights – one cannot enforce a granted South African patent in countries other than South Africa. Read more about Patents in Africa.

International Patent Examination

There is no such thing as a worldwide patent, which means that the provisional patent application must, within 12 months of filing the provisional application, be followed by the filing of either (1) patent applications in each country in which you require protection, or (2) a PCT application followed by the filing of patent applications in each country in which you require protection. Such patent applications will claim priority from the South African provisional application. Keep in mind that many countries, including the PCT system, will examine the novelty and inventiveness of the invention and grant of a patent in such countries will be subject to the invention’s passing of the examination.

It is also important to consider in which geographic areas a company/product will be rolled out as it may be necessary to register domain names in these countries. For example, if the nursery wanted to open an office in the UK, that would be a good reason to register the domain “plants.uk”. Thinking about future expansion and/or competition is necessary in order to protect domain names before they are taken by someone else.

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What We Can Do For You

South Africa

South Africa

We assist with the filing, prosecution and enforcement of your patent, design, trade mark and plant breeders’ rights in South Africa. Copyright dispute resolution and litigation. Franchise agreements and negotiation. Company registrations. Domain name registration and protection.

Patents in Africa, Trademarks in Africa

File in Africa

Foreign clients who wish to file patent, design and trade mark applications in South Africa and across Africa (including OAPI and ARIPO). Our firm acts as a patent agent as well as a trade mark agent for foreign clients who wish to protect their Intellectual Property in Africa.

World, International Protection

International Protection

Local clients who wish to file and protect patent , design and trade mark applications internationally. Our services include the search, filing and renewal of patents and trade marks in foreign markets such as Australia, China, the United States, Canada, Europe, Japan, etc.

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Domain Names

Domain Names

In simple terms, a domain name is the address through which internet users can access a website, for example, www.companyname.co.za or www.companyname.africa or www.companyname.com. Although these...

Common Law Tort of Passing Off

Common Law Tort of Passing Off

A question that inevitably arises is whether unregistered trade marks are afforded protection in South Africa and if so, to what extent. South African trade mark law is hybrid legal system governed...

South Africa

South Africa

The Smit & Van Wyk team of experienced intellectual property attorneys are able to provide legal advice regarding your patents, trade marks and copyright. We are a specialist...