Patent Requirements

Patent Requirements

The following information is supplied for the convenience of our clients and is to be considered as a brief and simplified outline only.

Patent Eligibility

A patent is a document granting an inventor sole rights to a new invention. The invention must involve an inventive step, must be new and capable of industrial application.

An invention would involve an inventive step if it were not obvious to a person skilled in the art in light of the state of the art. State of the art comprises all matter which has been made available to the public (anywhere in the world) by written or oral description, by use or in any other way, immediately prior to the priority date of filing.

An invention is considered new if:

  • it does not form part of the state of the art as described above;
  • it is not described in an application for a patent of earlier priority date which subsequently became open to public 

Patent Exclusions

Depending on the country where protection is required, certain types of inventions are not capable of receiving protection.  Below is a non-exhaustive list of patent exclusions:

  • 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 computer program; 
  • the presentation of information; 
  • any variety of animal, plant or any essentially biological process for the production of animals or plants and not a micro-biological process or the product of such process; 
  • a method of treatment of the human or animal body by surgery, therapy or diagnosis practised on the human or animal body. 
  • Other types of inventions may also not be patentable depending on the country concerned.

Contact us if your invention falls in any of the above categories.   Depending on the country concerned, 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 category.

Patent Searches

An experienced member of our staff should investigate the establishment of the existence of earlier patent specifications and other aspects. We can conduct various types of international searches on computer, including novelty searches covering 35 patent issuing authorities. Although a search may sometimes be expensive, it may prevent you from wasting money eventually. However, sometimes 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.

Some countries (such as South Africa) do not examine the subject matter of a patent application.  They will issue patents as long as all the necessary paperwork was submitted. However, the validity of such a patent can be challenged at any time by others.

If you require patenting in several foreign countries, it may be prudent to conduct an international patent search before filing patent applications involving large expenses.

This precaution is also recommended before:

  • investing heavily in somebody else’s patent;
  • embarking upon expensive litigation against an alleged infringer;
  • or commercialising an invention that may be covered by an existing patent.

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