Intellectual Property

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

What is a Patent Ambush?

Patent ambush is the phrase used to describe a situation of patent misuse where one of the standard setting organization’s members keeps vital information from the rest while setting up a new standard.The member involved in the patent ambush is either the company owner or one of the members that intend to file a patent or is in the process of doing so when the patent is related to the specific standard being developed. Once the standard has been set, the member or the member’s company files for patent infringement because the standard embodies specific elements of the patent. To prevent patent ambushes international standard setting institutions may have specific rules regarding information provision by member committees when they work together in setting a new standard. The institutes such as ANSI can require that all participants in the development of a new standard must disclose any patents pending, intention to file or knowledge about patents related to the standard upfront. The institute will in order to prevent a patent ambush then take the required steps to modify the standard or as an alternative seek a commitment on paper by the patent holder or company to license the users of the standard in a normal and fair manner.

Patent ambushes are frowned upon by the intellectual property communities and many governments see the act of a patent ambush as against healthy competition and the building of trust. The patent ambush can for instance, also take the form of the filing of a continuation patent application. In the application claims are lodged specifically aimed at the new standard. A patent ambush can also be done regarding a sub-marine patent which is a patent that has not been made public for years after the application.

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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...