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A patent is only as good as the enforcement of protection available.
South Africa has a track record of Patent enforcement which extends back some 150 years or more... |
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A patent is a written document which describes an invention – usually with reference to suitable drawings. The claims of a patent protect the invention. A patent can be enforced to prevent third parties from making or doing what is set out in the wording of the claims.
A patent can be dreafted to cover a product, process, system and/or method of doing something. Patentable inventions may include:
- mechanical or electronic devices;
- chemical compounds or compositions;
- processes of making something;
- systems or combinations of components for achieving a result; or
- methods of doing something.
A patent can protect an idea or a concept but it must be NEW. That is, the invention must not yet have been used or described openly anywhere in the world. FOR THIS REASON, it is essential that a patent application be filed before you disclose an invention to the public.
Another requirement for valid protection is that the invention must be INVENTIVE and not obvious.
As indicated, a patent will be invalid if the invention is disclosed to public or used commercially before filing a patent application. South Africa and most other countries have a first-to-file system. This is another reason to get a patent application filed as soon as possible.
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| Procedure for SA patents: |
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In South Africa, we usually first file a provisional patent application. Such an application does not have claims and only needs to fairly describe the invention. You then have 12 months before you need to file a complete patent application.
A provisional application is cheaper to file. The 12 month period allows for the invention to be developed. It also allows for the market to be tested and/or for finances to be raised. The complete patent application is based on the provisional and will claim the benefit of its earlier filing date (i.e. the first application establishes priority date for the second).
If a complete patent application is not filed, the provisional application lapses.
The South African Patent Office does not check whether the invention for which protection is claimed through the wording of the claims is NEW and INVENTIVE. It will only check to see that all the necessary forms are lodged. Complete patent applications are granted regardless of validity. HOWEVER, an invalid patent can be revoked on application to the Court of the Commissioner of Patents.
Where it is necessary (normally to place the claims in a valid form) the wording of a patent can be amended. This is subject to certain limitations but amendments can be filed at any time during the life of a patent.
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| Foreign patent protection: |
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It is possible to obtain patent protection in most foreign countries based on a South African patent application. Foreign applications must also be filed in within 12 months of the SA priority date.
Instead of filing an SA complete and/or foreign applications, a PCT International patent application may be filed (also within the 12 months). PCT stands for Patent Co-operation Treaty. The PCT application buys you another 18 months before a final decision needs to be made on which countries to file in. There are about 140 PCT member countries to choose from.
A patentability search and examination is included under the PCT procedure. Most foreign patent offices also examine for patentability. A foreign patent will only be granted once the relevant patent office is satisfied the claims are to a NEW and INVENTIVE invention.
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| Duration and maintenance of a patent: |
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A patent lasts for a maximum of 20 years. Annual renewal fees must be paid to keep it alive.
A patent in South Africa gives the exclusive right to make, use, exercise, dispose of, offer to dispose of, or import the invention in South Africa.
A patentee may license any of these reserved rights to another entity. This is normally done in exchange for royalty payments.
A patent can be transferred from the patentee to someone else. This is done by way of assignment. Both a license and assignment should be recorded on a register at the SA Patent Office.
A patent is infringed if someone without the permission of the patentee performs one or more of the reserved rights. To enforce the patent rights the patentee needs to institute legal proceedings in the Court of the Commissioner of Patents against the infringer. The Court can make an order including:
(a) an interdict preventing continued infringement;
(b) an award for damages;
(c) delivery up of the infringing articles and any tools for their manufacture; and
(d) an award for payment of a part of the costs of the litigation.
Contact us for any further information or explanation about patents. |
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