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Patent Law

South Africa

The Patent Law in South Africa requires that an invention meets three important conditions: Novelty, Usefulness and Inventiveness. Under the Patent Law the invention must be completely new. As such the patent lawyers will conduct a novelty search in trade magazines, online, through databases, and newspapers around the world to establish whether any reporting was done on the invention prior to filing for patent rights. In addition the Patent Law in South Africa requires that the invention must not be obvious to someone skilled in the specific subject area and it must be useful. Inventing something that cannot be used in commerce, medicine or for instance agriculture will thus not constitute the right to a patent. The best way to ensure successful filing and granting of a patent is to go through patent attorneys when applying for patent rights.

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.

Patent Exclusions

Inventions which cannot be the subject of a Patent in South Africa…

Exclusions as inventions in terms of the South African Patents Act:
Anything which consists of a discovery; a scientific theory; a mathematical method; a literary; dramatic, musical or artistic work; or any aesthetic creation; a scheme, rule, or method for performing a mental act; playing a game, or doing business; a program for a computer; or the presentation of information, are not considered an invention and can therefore not be patented in terms of the South African Patents Act. In certain circumstances you may still consider filing a South African provisional patent application, even though there may be uncertainty about the definition of the invention. The reason for this is that the above exclusions are interpreted restrictively (i.e. they exclude only the listed inventions as such from being patented). Also, this section of the South African Patents Act has not been subject to litigation in such a degree that clear precedents which can be followed have been set in all the above categories. Further, because of an increasing number of patents being granted in other countries for inventions that are excluded in terms of the South African Patents Act (such as software and business methods), a South African provisional patent application may be used to establish priority rights for the invention that may, within 12 months, be prosecuted in other countries where some of these categories of inventions are patentable (such as in the USA and in Europe).

Other inventions for which a South African patent will not be granted:
Inventions that are likely to encourage offensive or immoral behaviour cannot be protected by way of a Patent. Also, inventions which are frivolous and contrary to the known laws of nature, such as perpetual motion machines, are excluded from patentability. Inventions relating to methods of treatment, therapy or diagnosis to be performed on the human or animal body, as such, are not considered patentable, but compounds or compositions for use in such methods may be patented. In addition a patent cannot be granted for products of biological processes which are not essentially microbiological in nature.

TRIPS Agreement

The Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) is an international agreement between all the members of the World Trade Organization (WTO). It establishes minimum standards for the regulation of different forms of intellectual property (IP) by national governments as applied to nationals of other WTO member nations. The TRIPS agreement introduced intellectual property law into the multilateral trading system for the first time and remains the most comprehensive multilateral agreement on intellectual property to date. The TRIPS agreement requires members to provide strong protection for IP rights such as:

Copyright
(1) Terms must extend at least 50 years, unless based on the life of the author.
(2) Must be granted automatically, and not based upon any “formality”, such as registrations, as specified in the Berne Convention.
(3) Computer programs must be regarded as “literary works” under copyright law and receive the same terms of protection.
(4) National exceptions to copyright (such as “fair use” in the United States) are constrained by the Berne three-step test.

Patents
(1) must be granted for “inventions” in all “fields of technology” provided they meet all other patentability requirements (although exceptions for certain public interests are allowed and must be enforceable for at least 20 years.
(2) Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work and normal exploitation of the patent is not in conflict.
(3) No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
(4) Legitimate interests of third parties have to be taken into account by patent rights.

In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPS signatories under the principle of national treatment (with certain limited exceptions).

TRIPS also has a most favored nation clause: The most favoured nation clause can also be included in an agreement between a state and a company or an investor. This involves the provision of special privileges and advantages although the state cannot use contractual mechanisms to avoid its MFN treatment obligations with other countries. This general principle, however, is not absolute.