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Intellectual Property

South Africa

South Africa Patent Exclusions

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Inventions which cannot be Patented 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. For further information in this regard, please refer to our Biotech page.

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