Science Patents in South Africa

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Research and Development

Research and development in the life sciences can be extremely costly and time-consuming. The pharmaceutical industry provides a good example of the time-scales and funding one needs in order to bring a drug or biological product to market, and most academic or other research programmes do not have these resources available. However, in order to leverage funding or to recoup your investment in biotech research, there is usually one prerequisite required by private and, increasingly, public funders – a clearly defined biotech patent right to the invention. Consequently, without patent protection for usable inventions, investments in science diminish.

Life Sciences

As you will see from our enclosed patent brochure, all inventions must be novel, inventive and useful in order to be eligible for biotech patent protection. Biotechnological or life sciences inventions are no exception, but it is the manner in which these requirements are addressed that can curb or extend the biotech patent protection you acquire. Certain sections of local and foreign patent legislation deal specifically with inventions relating to biological processes or products and these requirements must be adhered to. Furthermore, only inventions and not mere discoveries are eligible for biotech patent protection – an invention goes further than a mere discovery, as it provides a practical application of the discovery in order to provide a solution to a problem.

Examples of life science inventions which may be eligible for patent protection:
Listed below are examples of life sciences inventions that may be eligible for biotech patent protection. These patent examples should not be considered exhaustive or complete, but serve merely as a guide as to what may possibly be patented in your discipline. Your invention may, of course, encompass several of these artificial classifications and you eventual patent application will most likely be a mosaic covering several aspects of each of these patent classes.

Plant and Animal Sciences Patents

According to the patent laws of several countries, one cannot obtain biotechnological patent protection for plant or animal varieties, or essentially biological processes for the production of plants or animals. However, as there has been no South African case law addressing this aspect of patent law, one has to look further afield to European and UK patent court decisions. It appears from the European Biotech Directive and the UK Patent Office practice manual that patent claims to a genetically modified plant per se (and not to a plant variety) are allowable in a biotechnological patent application.

While this difference may seem pedantic, it represents the difference between a patent application that may be considered valid and one that is invalid. The term “essentially biological processes” for plant or animal production refer generally to the process of obtaining new varieties by traditional breeding methods – plants or animals obtained in this way are not considered patentable. Should you have originated a new plant variety by conventional breeding, however, this may be protected by way of a Plant Breeders’ Rights application in South Africa, and not a patent.

The USA is the exception to this and issues so-called Plant Patents. Please let us know should you require patent assistance in this regard. Similarly, biotech patent claims to animals obtained by traditional breeding methods are not allowable at most Patent Offices, but a genetically modified animal is considered patentable in the UK, Europe and USA. There is currently no equivalent in the animal sciences field to the protection offered by Plant Breeders’ Rights.

Steps to File a Science Patent in South Africa

  1. Contact a Qualified Patent Attorney: 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.
  2. Establish the type of Patent: Patents of Invention, National Phase PCT Application or Patents of Addition.
  3. Prepare your Application: Your patent attorney will prepare the specifications, claims, drawings and abstract for your invention which will be required upon filing.
  4. File a provisional application: To obtain the earliest possible date from which to claim rights to your invention. Once the provisional patent has been submitted, additional steps has to be taken within 12 months to complete the application.
  5. File a complete application: Within 12 months of filing the provisional application in South Africa, and/or in each country where you wish to obtain patent protection.

Invention requirements

This “absolute” novelty requirement implies that any disclosure anywhere in the world before the filing date of a patent application in South Africa, will destroy the novelty of your invention, thereby forfeiting your patent rights.

There may be similar inventions that have been disclosed to the public in patent specifications or other literature. It needs to be determined whether your invention is considered obvious or not.

Inventions with no application in trade, industry or agriculture cannot be the subject of a patent in terms of South African patent law.

South Africa patents have a duration of 20 years and annual renewal fees are payable from the 3rd anniversary of the filing date. South Africa is a member of PCT and the Paris Convention (International treaty for the protection of Industrial Property). South Africa patents have a requirement of absolute novelty, inventiveness and usefulness.