Smit & Van Wyk Patent, Trademark & Registered Designs

Software Business Methods

Intellectual Property

Novelty Searches in view of obtaining patent protection for an invention

If a product or concept identical to yours is already in existence anywhere in the world then you cannot obtain patent protection for the same concept in South Africa (or in most other countries for that matter). However, should you have invented an improvement on an existing concept and the improvement is new,  inventive, and has a use in trade, industry or agriculture, then such improvement may certainly be patentable. In order to get an indication of whether such a product already exists anywhere in the world, we are able to conduct a fixed-cost, fixed-time novelty search through the European and American patent offices’ databases. Such a search would give an indication of the novelty of the invention, however, keep in mind that it would not guarantee the invention’s novelty.

Patents for Software and/or Business Methods

Section 25(2) of the South African Patents Act excludes from patentability, inter alia, a computer program and a scheme, rule or method for performing a mental act, playing a game and doing business. According to Section 25(3) of the Patents Act, these categories are excluded from patentability “only to the extent to which a patent or an application for a patent relates to that thing as such”. Although there is this exclusion, it is important to note that a South African patent application is not subject to substantive examination, but merely undergoes formal examination to ensure that all of the documentary requirements have been met. Accordingly, no patent application has to date been rejected by the Registrar of Patents on the basis that the invention disclosed therein falls within one of the aforementioned categories. As further discussed, once a patent has been granted, a third party can apply for revocation of the patent. In such a revocation action, the court would then decide whether or not the subject matter of the patent is patentable, but the onus of proof is generally on the objector. There have, however, not yet been any South African court decisions on the patentability of software or business-method based inventions. The current trend in the United Kingdom and at the European Patent Office is to grant patents for software-based inventions. Methods of doing business are patentable in the United States. It is thus important to bear in mind that a South African provisional patent application would provide a priority date for corresponding foreign patent applications in countries where these kinds of inventions are not excluded from patentability. Have a look at and, specifically the section entitled “history and current trends”. Although not authoritative, these texts provide up to date insights into the patenting of software-related inventions.

Patent application

The drafting of a patent specification is best done by registered patent attorneys. Our charges for the drafting and filing of a provisional patent application at the South African Patent Office. We do not require formal drawings from you, but merely a good description of the invention and some freehand drawings. It usually takes about 20 working days for the preparation and forwarding of the specification to you for approval prior to filing. If all goes well and there is a market for your product, you should, within 12 months from the date of filing of the provisional patent application, file a so-called complete patent application which, in South Africa, will be about 30% more than the cost for drafting and filing of the provisional patent application. Foreign patent applications also need to be filed at such time, given a reasonable possibility of success in a foreign market. Click here and complete our Invention Description Form and return the form to us so that we may provide you with a more accurate cost estimate. We will be able to provide you with information regarding the suitability of your invention for design protection upon receipt of the completed IDF. The IDF also contains the website addresses of the US and EU patent offices, where you may conduct your own patent and design searches to obtain an indication of whether your idea already exists.

Our communications with our clients are subject to attorney / client privilege and are treated in a highly confidential manner. Please keep the invention secret until it has been protected.

Posted on 15 June 2011
Home / Blog / Software Business Methods

View our Awards & Listings

MIP IP Stars   WTR   Global Chambers   Lexology  I AM PATENT   WWL

Intellectual Property in South Africa

Smit & Van Wyk deals exclusively with patents, designs, trademarks, copyright and plant breeders’ rights in South Africa. Our team of Intellectual Property attorneys have the knowledge, experience and resources to give expert legal advice regarding your Intellectual Property portfolio. We can assist with the protection, prosecution and enforcement thereof. It is our mission to provide unparalleled service to our treasured clients by developing dynamic solutions which are tailored to suit individual Intellectual Property needs. The key to achieving this lies with our vibrant people, who are eager to go beyond the call of duty.

Patent Attorneys
It is highly recommended that your claims be written by a qualified patent attorney or patent agent. The patent attorneys at Smit & Van Wyk provide a wide range of patent-related services across multiple industries and fields of technologies, including patent drafting, filing and prosecution.

South Africa Intellectual Property
Smit & Van Wyk deals exclusively with patents, designs, trademarks, copyright and plant breeders’ rights in South Africa. Our team of Intellectual Property attorneys have the knowledge, experience and resources to give expert legal advice regarding your Intellectual Property portfolio.

Franchise Attorneys
Franchising legal advice is specialised and differs from other areas of law, thus you need find yourself an attorney that specialises in this specific type of law. Franchise attorneys represent the franchisor, as well as the franchisee. 

PCT National Phase Patents
The PCT National Phase is the second of the two main phases of the PCT procedure. It follows the international phase and consists in the processing of the international application before each Office of (or acting for a Contracting State) that has been designated in the international application.