What is a Patent
A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
The patent provides protection for the owner, which gives him/her the right to exclude others from making, using, exercising, disposing of the invention, offering to dispose, or importing the invention. The protection is granted for a limited period of 20 years.
In terms of the South African Patents Act, individuals may file their own provisional patent applications. It is however, advisable for applicants to seek the assistance of the patent attorneys.
If a provisional patent application is filed, the strength and scope of protection ultimately obtained will depend on the wording and content of the description of the invention. The Patent Office takes precautions to maintain confidentiality but can not be held responsible for what occurs outside the office.
South Africa is one of 148 countries that is a member of the Patent Co-operation Treaty (PCT). This Treaty allows an individual to file an international application as well as a national application. The international application will designate countries in which the applicant seeks protection. Extra fees are payable for this type of registration.
The Patent Office can not accept any responsibility for the loss of rights arising if the invention becomes public and is copied and the provisional applications have not been properly drafted.
A patent can last up to 20 years, provided that it is renewed annually before the expiration of the third year from the date of filing in South Africa. It is important to pay an annual renewal fee to keep it in force. The patent expires after 20 years from the date of application.
Section 25 of the Patent Act, Act 57 of 1978 defines the scope of patentable inventions in negative by specifying what cannot be patented.
A patent may, subject to the provisions of this section, be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade and industry or agriculture. These include inventions such as appliances, mechanical devices and so on. However, you may not protect things such as :
- Computer programmes
- Artistic works
- Mathematical methods and other purely mental processes
- Plans, schemes, display of information
- Business methods
- Biological inventions
- Methods for treatment of humans and animals
Please note that the above mentioned things cannot be patented as such. For example, a computer programme is patentable as part of a technical solution, i.e. when it is used to operate a specific device or machine such as a winder, a crane or parking management.
The protection provided by the South African patent system is a major contributor to the success of new inventions and the millions of rands in earnings that they generate.
Some of the benefits of Patent Registration
- It gives you the right to stop others from manufacturing, using and/or selling your invention in South Africa without your permission.
- It lets you licence someone else to manufacture your invention on agreed terms or take legal action against people who are using your invention without your permission.
- It encourages South Africans to continue their research, to develop new and innovative products, exploit new technology and promotes the transfer of technology to South Africa.
- It gives our trading partners the incentive to provide similar rights and thereby protect our exports in markets overseas.
- If you want to protect the way your invention works then patenting may be the most appropriate option.
- If your invention is new, not publicly disclosed and has commercial potential, then you are ready to consider what type of patent will suit your needs.
If you have developed a new product or process, you should decide whether patenting it should be part of your business strategy.
Some points to consider:
- Does a patent offer the best protection for your invention?
- Can you be granted a patent?
- Do you have all the information required to file a patent application?
Filing a provisional application is quite inexpensive and gives you 12 months to consider the commercial worth of your invention and to resolve issues such as finance and licensing. Then you can decide whether to continue with patent protection.
What is PCT?
As the name (Patent Cooperation Treaty) suggests, the PCT is an agreement for international co-operation in the field of patents. More specifically, it is a treaty that provides for rationalisation and co-operation with regard to the filing, searching and examination of patent applications.
Patent Cooperation Treaty (PCT)
With the traditional patent system, if patent protection is sought in other countries, individual patent applications need to be made for each respective country. This involves the preparation and filing of several patent applications, translation costs and the services of patent attorneys in these countries – all resulting in considerable costs.
Under the traditional system, the patent office in each country (where protection is sought) must carry out formal examination of the application and search procedures resulting in a duplication of effort.
In order to overcome some of these problems the Patent Cooperation Treaty (PCT) came into effect in 1978. This treaty came into effect in South Africa in March 1999. There are at present 148 countries that are part of this international treaty.
The PCT does not provide for the granting of "international patents".
- The task and responsibility for the actual granting of patents remains in the hands of the Patent Offices in the designated countries where protection is being sought.
- The PCT streamlines the international search and preliminary examination process and this result in cost cutting.
- The PCT provides for the formal examination of the international application by way of a single patent office – the Receiving Office.Each international application is subjected to an international search and the searching authority provides a report on whether any similar inventions have been lodged. This enables the applicant todecide whether or not the invention is patentable.
- The PCT provides a centralised international publication ofinternational applications together with related internationalsearch reports. It provides the option of an international preliminary examination and provides reports that assist the Patent Offices in the various signatory countries, with an opinion as to whether the claimed invention meets certain international criteria for patentability
- These services obviously streamline the traditional proceduresfor patent application to foreign countries, and result inconsiderable reduction in time and costs.
i. Under the "traditional" system, the applicant for a patent registration may:
a. File for for a provisional patent application, and then within 12 months may file a "complete patent application" claiming priority from the provisional patent application.
b. File directly a complete patent application.
c. Within 12 months from the priority date the applicant may file patent applications abroad to countries of his choice under the Paris Convention.
d. These variety of national patent applications in different countries result in
- multiple formality requirements
- multiple searches
- multiple examinations and procedural formalities
- translations and national fees, all payable after the patent is lodged in each country
ii. With regard to the PCT system, when an international application is made, a further 18 months is added for the international search and international publication i.e. up to 31 months before the applicant has to finally decide whether or not to proceed with the actual patent applications in other designated countries.
Thus the applicant, under the PCT system "buys time" before committing to a decision whether or not to apply for patents in other countries and incurring the considerable costs involved in this process.
- If an applicant has come up with an invention that he or she wishes to patent in a number of countries, the applicant is advised to utilise the Patent Cooperation Treaty (PCT) prior to actuallylodging patent applications in these countries – the benefits of the PCT system have been outlined above. However certain "benefits"or "discounts" can apply – and CIPC is able to provide advice and guidance in respect of how to qualify for these.
- The applicant or patent attorney will complete a "Patent Co-operation Treaty Request Form" (in triplicate), together with the respective specifications, drawings etc.
- The PCT office at CIPC processes this application and calculates the costs involved.
- Any national or resident of South Africa can file an international application at the PCT Receiving Office in South Africa.
- The PCT system is a patent "filing" system, and is not a patent"granting" system. There is no "PCT patent".The
- PCT system provides for:
- An international phase comprising:
i. Filing of the international application
ii. International search
iii. International publication and
vi. International preliminary examination (optional)
- A national/regional phase before PCT Designated Offices and/or Elected Offices.
- The decision on granting patents is taken exclusively bynational or regional offices in the national phase.
- Only inventions may be protected via the PCT by applying forpatents, utility models and similar titles.
- Industrial Design and trade mark protection cannot be obtained via thePCT. There are separate international conventions dealing withthese types of industrial property protection (The Hague Agreementand the Madrid Agreement, respectively). South Africa is not yet a member of these agreements.