though patent laws vary from country to country, most countries
have adopted a more or less uniform approach to patent protection.
Accordingly, the following information may vary from country
to country and is to be considered as a brief and simplified
outline only which is merely supplied for the convenience
of our clients or potential clients.
general, a patent is a legal instrument conferring protection
on an invention which is new, involves an inventive step,
and is capable of industrial application.
on the country concerned, certain types of inventions are
not capable of receiving protection e.g. a discovery; a
scientific theory; a mathematical method; a literary, dramatic,
musical or artistic work or any other aesthetic creation;
a scheme, rule or method for performing a mental act, playing
a game or doing business; a program for a computer; the
presentation of information; any variety of animal or plant
or any essentially biological process for the production
of animals or plants, not being a micro-biological process
or the product of such process; and a method of treatment
of the human or animal body by surgery or therapy or of
diagnosis practiced on the human or animal body. This is
not an exhaustive list as other types of inventions may
also not be patentable depending on the country concerned.
is advisable to contact us should your invention fall in
any of the above categories as such category may not be
applicable in certain countries and, even where applicable,
there may be a way to obtain protection for your invention
by wording the patent specification in a particular manner
so as fall outside such category.
Validity requirements in general
general, in order to obtain valid protection for an invention
the invention must involve an inventive step and must be
invention is typically deemed to involve an inventive step
if the invention was not obvious to a person skilled in
the art in the light of the state of the art which comprises
all matter (whether a product, a process, information about
either, or anything else) which has been made available
to the public (anywhere in the world, regardless of where
protection is being sought) by written or oral description,
by use or in any other way, immediately prior to the priority
date of the invention.
turn, an invention is typically deemed to be new if it does
not form part of the state of the art as described above
with respect to inventive step; it is not described in an
application for a patent of earlier priority date which
subsequently became open to public inspection; and if it
has not been used secretly and on a commercial scale.
view of the above discussion on inventiveness and novelty,
it follows that an invention must be kept absolutely secret
until it has been included in a patent application otherwise
the invention will not be capable of receiving patent protection.
Furthermore, even if an invention is new in a country in
which protection is sought but is known anywhere else in
the world then it will not be possible to obtain protection
in that country
connection with the above, we have to rely very largely
on your information. However, the establishment of the existence
of earlier patent specifications and other aspects should
be investigated by an experienced member of our staff. Although
a good search may sometimes be expensive, it may prevent
you from wasting money eventually.
At least initially, we do not normally recommend that a
search be conducted to determine the novelty of an invention.
The reason herefor is that the costs of a search may outweigh
the cost of filing a patent application in a single country,
especially one as relatively inexpensive to file in such
as South Africa. Furthermore, certain countries (such as
South Africa) do not conduct an examination on the subject
matter of a patent application and will issue patents as
long as all the necessary paperwork has been submitted (however,
the validity of such patent can be attacked at any time
if patenting in several foreign countries is contemplated,
it may be prudent to instruct us to conduct an international
patent search prior to carrying out a programme of patent
applications involving large expenses.
precaution is also recommended before investing heavily
in somebody else's patent, before embarking upon expensive
litigation against an alleged infringer, or before commercializing
an invention that may be covered by an existing patent.
have the ability to conduct various types of international
searches on computer, including novelty searches covering
some 35 patent issuing authorities.
Safeguards against infringement of patents held by others
patent is a territorial right limited to the country in
which the patent has been granted. In general, the grant
of a patent gives a patentee the right (in the country concerned)
to prevent other persons from making, using, exercising,
disposing of, offering to dispose of, or importing the patentee's
invention. Infringement typically includes all forms of
using the patented invention. It may even include private
use as well as manufacturing, selling, offering for sale
or importing articles covered by the patent. The term of
a patent in most countries is 20 years, subject to the payment
of annual renewal fees.
clients are warned against the popular fallacy that the
grant of a patent (even if valid) automatically authorises
the patentee to commercialise his or her invention regardless
of whether some aspects of the invention are covered by
patents held by somebody else or not. 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, carried
out by an experienced member of our staff.
Procedure for obtaining patent protection for your invention
first step (for our South African clients) to obtaining
patent protection in several countries is normally the filing
of a provisional patent application at the South African
Patent Office. Please click on the title "South
African Patent" for more information, in this respect.