Understanding what a patent is, why you may need one, and how patent protection works in South Africa is essential for any person or business creating something new, inventive and commercially useful, in order to realise value from their invention. Patent laws and protections can vary significantly between African countries, European countries, and other regions, with international treaties and regional patent systems also playing a key role in shaping these differences. Here is an overview of the basics of patents and patent law.
The South African definition of a patent
A patent is an exclusive right granted for an invention that is new, involves an inventive step, and is applicable in industry, trade or agriculture. In South Africa, patents are granted by the Companies and Intellectual Property Commission (CIPC) under the Patents Act 57 of 1978. This exclusive right is valid for 20 years, subject to the payment of an annual renewal fee once granted, which prevents others from making, using, exercising, selling, advertising, or importing the patented invention, so that the patentee can enjoy all profits and benefits that come from the invention. No competitor can legally imitate the invention during this period without authorisation of the patentee.
A patent is therefore a form of intellectual property (IP) that gives its owner an exclusive right to an invention for a specific period. An invention can be:
- A new method
- A new product or apparatus; or
- A new process or use
That provides a new way of doing something or solves a problem in a new technical way. To qualify for patent protection in South Africa, an invention must meet three essential requirements:
- Novelty: The invention must be new. This means the invention should not have been made available to the public in anyway, anywhere in the world, before the date on which the first patent application is filed. Novelty can be established by requesting a patent attorney to conduct a “prior art” search.
- Inventiveness: The invention must be inventive. An invention is deemed inventive if it involves an inventive step, this being that it would not have been obvious to a person skilled in a field which the invention relates, immediately before the date on which the first patent application is filed.
- Industrial applicability: The invention must be functional and usable in trade, industry or agriculture.
What is “prior art”?
To determine if an idea truly has novelty, you will have to do a “prior art” search.
“Prior art” is all the knowledge that existed immediately before the date of filing of a patent application for a particular invention. This includes things like prior patents or patent applications which become open to public inspection, publications, or any form of public disclosure that describes or demonstrates an invention. In patent law, prior art is used to assess if an invention satisfies the basic requirements for patentability, that is whether the invention is novel and inventive. If the same invention has been disclosed in the past, your innovation cannot be considered novel and inventive.
What is an “inventive step”?
“Inventive step” is a patent law requirement that an invention must not be obvious to a “person skilled in the art”. The “step” refers to the need for the invention to differ from that which exists in the prior art. The extent of this difference is not necessarily what is important, what matters is that the difference exists and that it would not have been obvious to someone skilled in the art.
Why a patent matters: Commercial protection, competitive advantage and asset value
When most people hear the word “patent”, they picture a technical drawing or a scientific invention protected by a complex legal document. Patents can however be much more than that. They are powerful commercial tools that allow inventors, startups, researchers and companies to protect new ideas, products and processes. Through the legal process of obtaining a patent, you secure exclusive rights to prevent others from copying or exploiting your invention. It strengthens your market position and protects your competitive edge.
In addition to these advantages, patents benefit society by providing public access to technical information about inventions. Once a patent is published, the details of the invention become available to the public, which accelerates innovation and contributes to technological advancement. After the patent expires, the knowledge enters the public domain, further promoting healthy competition among manufacturers and encouraging gradual improvements of the technology base.
Biggest advantages of registering a patent:
- Exclusive rights to prevent others from copying or exploiting your invention.
- Competitive advantage as competitors cannot legally offer the same or similar product in South Africa.
- Investor confidence because it reduces risk and increases future revenue potential.
- Licensing opportunities to create new revenue streams without needing to build factories or distribution systems yourself.
- Higher company valuations, because patents are assets that can be sold, assigned or used as collateral.
Examples of inventions that can and cannot be patented
Patents are not just for high-tech products designed by manufacturers. In South Africa, thousands of practical and creative inventions qualify as patents each year. For example, specific patents can be granted for new mechanical devices, chemical processes, or innovative software solutions.
Once a patent is granted, the patentee’s invention is legally protected, giving the owner exclusive rights to use, make, or sell the invention.
Common examples of things that CAN be patented:
- Products such as medical devices, engineering components or household gadgets
- Processes and methods for chemical, manufacturing, waste removal and energy industries
- Tech innovations, noting that software in itself is generally not patentable in South Africa unless it forms part of a technical system or solves a technical problem.
- Improvements to existing inventions to make products more durable, efficient or cost-effective.
Examples of things that CANNOT be patented under South African law:
- A scheme, rule or method for performing a mental act, playing a game or doing business
- A discovery or scientific theory
- Mathematical methods
- Artistic creations
- Computer programmes
- Presentation of information
- Methods of medical treatment on the human or animal body
The above are only prevented from patentability to the extent that the patent or patent application relates to that such thing itself.
If in doubt, a professional review with an expert can determine whether a new idea qualifies as being patentable.
When should you file a patent? The best timing for protection
Knowing when to hire a patent attorney and the correct time to file a patent application can make a big difference. While there may be reasons to carefully time when to hire a patent attorney, you should ideally consult a patent professional as soon as you believe your invention is novel and commercially useful – in other words, at the idea stage.
A provisional patent application is often the first legal step that secures your priority filing date. It protects your priority rights while you refine the invention or seek funding. A patent attorney adds value by drafting accurate, patent-friendly technical descriptions, that will stand you in good stead when you are ready to take the next step in the patenting process.
The key is to file before you disclose. Don’t share your idea in business presentations, pitches to investors, online content, sales discussions, academic publications or in trade fairs before you’ve secured a priority date. Any information disclosed in anyway, anywhere in the world forms part of the “prior art” and can destroy an inventions novelty requirement under South African patent law and the law in most other countries.
Why work with a patent attorney in South Africa
Patent protection is technical and procedural, and it’s important to realise that patents are different from other areas of intellectual property. Drafting a patent incorrectly can jeopardise the scope and effectiveness of an invention’s protection. That is why consulting a patent attorney for legal assistance is strongly recommended.
The requirements of novelty and inventiveness are determined with regard to the “claims” which define the invention. Ensuring that the invention is correctly claimed is vital for ensuring that the patent enjoys the protection afforded to it by the legal framework. Patent attorneys have a background in the technology field, usually a higher degree, as well as specific legal training that enables them to correctly define the invention to be protected. If you need more detail about the patenting process or legal formalities, a patent attorney can provide guidance.
A qualified patent attorney can assist with both local and international patent prosecution, including evaluating patentability, conducting searches, drafting patent specifications, and filing patent applications. Patent attorneys can also assist small businesses, individuals, and large companies in helping inventors realise the full value of their invention by assisting with any patent litigation needs, such as instituting or defending actions of infringement, as well as commercial needs, such as negotiating and drafting license agreements.
Frequently Asked Questions
What is a patent?
A patent is an instrument that gives an owner an exclusive or monopoly right over 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 allows the owner to exclude others from, among other things, making, using, exercising, disposing of, offering to dispose of, or importing the invention.
Does my invention qualify for patent protection?
An invention can take a number of forms, including a process, a method, a machine, a device, a new material, a chemical compound or chemical composition. The precise requirements for patentability depend on the law of the country concerned. Generally speaking, to be eligible for patent protection, an invention must:
- be new, in that it is not previously known anywhere in the world (novel);
- not be an obvious variation on known technology (inventive); and
- be capable of being applied in trade, industry or agriculture (useful).
What is a patent specification?
The document that describes the invention is known as a patent specification. It not only describes the invention but also defines, in “patent claims”, the specific features of the invention that enjoy protection.
What limitations are there to a patent right?
A patent right is restricted in a number of ways. First, it is limited to the countries in which the patents for that invention are granted.
Second, it is limited to a maximum term, subject to renewal fees being paid to maintain the patent in force. In South Africa, the maximum term is 20 years.
Finally, the claims of the patent define the specific features of the invention that enjoy protection under the patent.
Conclusion
Patents are more than legal filings. They are long-term commercial assets that protect your innovation, support investment, strengthen your competitive position and increase the value of your business.
If you are working on a new product, method or technical improvement, securing patent protection early can be one of the smartest strategic decisions you make – especially if you consider that it will protect you for two decades as you find investment and build a market for your product.
The risks of not securing patent protection early include giving competitors the power to patent your idea, opening up opportunities for copycats to move in on your idea, and no longer meeting the requirement of novelty which could permanently destroy your ability to patent your idea. You could also lose out on investor and partner support if you don’t have your ducks in a row. Also, delaying a South African application can close the door to foreign filings.
Spoor & Fisher has more than a century of award-winning expertise in drafting and prosecuting patents across South Africa and internationally. Whether you are an inventor, a startup founder, a business owner or part of a larger organisation, our patent attorneys can guide you each step of the way to protect your precious ideas, and bring them to fruition, and enforce your intellectual property rights.
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