South African Patents

South African Patent System

The following information is supplied for the convenience of our clients and is to be considered as a brief and simplified outline only.

Lodging of a Patent Application in South Africa.

In South Africa, it is possible to file a provisional patent application, a complete patent application, or a Patent Co-operation Treaty (PCT)  so-called International Patent Application which also designates South Africa.

If the idea has not been finalised in detail yet, then a provisional patent application is usually the first step in obtaining patent protection. You will have 12 months during which to conduct further experiments and make further improvements. The provisional patent application will later form the basis for a complete patent application and should be drawn up professionally and with great care and should contain as much detail as possible. A poorly drawn provisional patent application may be completely worthless from the legal point of view.

A provisional patent application must be followed by a fresh patent application with a complete specification within twelve months from the date of filing the provisional specification. An extension of three months can be obtained on payment of a fee, or else all rights will lapse irrevocably.

Where the full practical details of your invention have already been developed, a provisional patent application is not required. A complete patent application or a PCT patent application may be lodged at first instance.

If you only require temporary protection for testing the commercial possibilities of an invention, you may prefer to lodge an initial provisional patent application. 

If you make further important discoveries or improvements to the invention since the provisional application was filed and before the period for lodging the complete patent application has expired:

  • it is advisable to file additional provisional patent applications to cover the improvements;
  • or to immediately file a complete patent application even before the 12 month period has passed.

The owner of a granted patent can protect subsequent improvements or modifications to the invention covered by the patent by the filing of an application for a patent of addition. Whether or not a patent of addition is called for rather than an independent patent, has to be determined carefully in each specific case.

Validity Requirements in South Africa 

The South African Patent Office does not investigate the validity of patent claims. However, the validity of a patent can be attacked at any time by others. The following are some of the most common grounds of attack, which should, if possible, be kept in mind even at the time of filing a patent application: 

  • that the invention was obvious to a person skilled in the art in the light of the state of the art, which comprises all matter which has been made available to the public (in any country) by written or oral description, by use or in any other way, immediately prior to the priority date of the invention;
  • that the invention was not new in that, immediately prior to the priority date of the invention,
    1. it formed part of the state of the art as described above, or
    2. the invention was described in an application for a patent of earlier priority date which subsequently became open to public inspection, or
    3. was used secretly and on a commercial scale in the Republic of South Africa

We have to rely very largely on your information. However, generally the establishment of the existence of earlier patent specifications and other aspects should be investigated at the Patent Office either by the applicant or by a patent attorney. Although a good search may sometimes be expensive, it may prevent you from wasting money eventually. 

Safeguards Against Infringement of Patents Held By Others 

The grant of a South African patent gives a patentee the right to prevent in South Africa, other persons from making, using, exercising, disposing of, offering to dispose of, or importing the patentee's invention. 

Infringement includes all forms of using the patented invention. It even includes private use as well as manufacturing, selling, offering for sale or importing articles covered by the patent. The term of a South African patent is 20 years, subject to annual renewal after the third year.

The grant of a patent does not authorise the patentee to commercialise his or her invention if some aspects of the invention are covered by patents held by somebody else. A patentee who wishes to commercialise an invention should make sure that he or she is not infringing somebody else's patent. For this purpose, we strongly recommend a search at the Patent Office.

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