Patents

Patent protection in South Africa provides inventors and businesses with exclusive rights over qualifying inventions, allowing them to control the use, manufacture, sale, or commercial exploitation of the invention. Protection is available for inventions that are new, inventive, useful, and capable of being applied in trade or industry, subject to the requirements of the Patents Act 57 of 1978.

Authority

CIPC

Membership

WIPO

Treaties

PCT and Paris Convention

A patent protects an invention that is new, inventive, and capable of being used in industry or trade. This may include products, devices, machines, chemical compositions, processes, methods, or improvements to existing inventions, provided that the invention meets the legal requirements for novelty, inventiveness, and industrial application. Smit & Van Wyk can assist you with all aspects of patent protection and enforcement, from securing your rights to taking action when those rights are infringed.

What We Do

Smit & Van Wyk provides legal and technical advice across the full lifecycle of a patent, from assessing an invention and securing protection to managing and enforcing patent rights. Our patent services include:

✓ Patentability Assessments

✓ Patent Searches

✓ Patent Drafting and Filing

✓ International Patent Protection

✓ Patent Prosecution

✓ Patent Portfolio Management

✓ Enforcement and Litigation

✓ Valuation and Commercialisation

The Process

1. The invention should be kept confidential before filing a patent application. Because South Africa applies absolute novelty, public disclosure anywhere in the world can affect the ability to obtain patent protection.

2. The invention is assessed to determine whether it meets the requirements for patent protection. A patent search may be conducted to identify relevant prior art.

3. File a Provisional Patent Application to establish a priority date. It provides the applicant with a period of 12 months to improve the invention and decide where further protection is required.

4. File a Complete Patent Application before the 12-month period expires to continue the patent process.

5. Where protection is required in other countries, applications may be filed directly in individual countries or regions. Alternatively, a PCT application can be filed, providing a centralised international filing route.

6. The patent application proceeds through the relevant examination and registration process. The application may be subject to objections or other requirements before the patent is granted.

7. Once granted, the patent must be maintained through the payment of renewal fees. Patent ownership, licensing, enforcement, valuation, and commercialisation can also be managed throughout the life of the patent.

Requirements

Useful
The invention must provide a practical benefit or solve a recognised problem. It must have a useful purpose and produce a result that can be put to practical use.

Inventive
The invention must involve an inventive step and must not be obvious to a person skilled in the relevant field. It must represent more than a straightforward or routine development of what is already known.

Capabilities
The invention must be capable of being made, used, or implemented in trade, industry, or agriculture. It must have a practical application and be capable of being put into use beyond a purely theoretical concept.

What Is Protected

✓ New machines, equipment, tools, electronic devices, components, and other products.

✓ New manufacturing, industrial, chemical, technical, or other processes and methods.

✓ New chemical compounds, compositions, formulations, and related technologies.

✓ Improvements to existing inventions.

✓ Inventions in fields such as engineering, electronics, telecommunications, manufacturing, chemistry, and other areas of technology, provided they meet the requirements for patent protection.

Excluded

Discoveries, scientific theories, mathematical methods, aesthetic creations, business or mental methods, computer programs, and the presentation of information, where considered in themselves.

Renewals

A South African patent must be maintained by paying annual renewal fees to keep it in force. Renewal fees become payable from the third year after the patent application was filed, and must be paid annually thereafter for the duration of the patent. The fees are payable within the prescribed period, and the patent may lapse if the required renewal fee is not paid. If a renewal fee is not paid on time, South African law provides a six-month grace period during which the fee may still be paid, together with the prescribed additional fee. If the required fee remains unpaid after the grace period, the patent may lapse. Renewal payments are therefore an important part of maintaining patent rights throughout the 20-year maximum term of a South African patent.

Transfer of Onwership

Patent ownership can be transferred from one person or entity to another through an assignment. This may occur through a sale, transfer of a business, corporate restructuring, or another agreement between the parties. The transfer should be recorded with the Companies and Intellectual Property Commission (CIPC) so that the patent register reflects the new owner.