Even 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.
In general, a patent is a legal instrument conferring protection on an invention
which is new, involves an inventive step, and is capable of industrial
Depending 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.
It 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
Validity requirements in
In general, in order to obtain valid protection for an invention the invention
must involve an inventive step and must be new.
An 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.
In 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.
In 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
In 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.
At least initially, we do not normally recommend that a search be conducted to
determine the novelty of an invention. The reason being 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 by others).
However, 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.
This 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
We have the ability to conduct various types of international searches on
computer, including novelty searches covering some 35 patent issuing
Safeguards against infringement
of patents held by others
A 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.
Our 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.