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What is a patent?

Provided by Business Partners Ltd, South Africa's leading investor in SMEs


LockBriefcase.jpgIf you have had the creativity and foresight to come up with an invention no one else has thought of, you can and should protect it with a patent. This gives you the exclusive right to produce and sell the product for a certain period of time. Your invention will also be protected from being made or sold without your permission.

Patenting something you have invented is quite an involved procedure, but very necessary to protect yourself from potential copycats. This article is a very basic guideline to what the process entails.

A patent is a document that gives you the exclusive rights to your creation. It usually contains a comprehensive description of your product or idea and how it is protected by the patent.

It's vital that this document is written in a way that adequately safeguards you, with no loop-holes that someone can use to copy, sell or distribute your invention without your permission. You must therefore be very careful about how you fill in the application forms and give as much detail as possible when drafting the patent specifications. It is probably worth hiring a patent attorney to help you with this.

What can be patented?

Section 25(1) of the Patents Act defines patentable inventions as:

Any new invention that involves an inventive step and which is capable of being used or applied in trade and industry or agriculture.

Section 25(2) of the Patents Act states that the following are not considered inventions in terms of the Act:

Anything which consists of a discovery, a scientific theory, a mathematical method, a scheme, rule or method for performing a mental act, playing a game or doing business;  or a program for a computer.’

Before you patent

As much as you believe your idea is the most inventive ever, you may be disappointed to find that someone else has already registered the idea or product. Do a search for existing patents before you waste your time, effort and money.

Ensure that the invention is genuinely new and that it, or parts of it, does not infringe on anyone else's patent. To do the search, you can go online to the Company for Intellectual Property Commission's (CIPC) website or go through the Pretoria office of the Patents Registrar.

Steps to lodging a patent

You have a number of options when it comes to doing the paperwork.

  1. If you have the basic idea, but are still working on the details of your patent, applying for a provisional patent will provide some protection and gives you up to 12 months to do the final patent. This may be the best option if you're worried that someone else beast you to the punch. Later on, the provisional patent application will form the basis for a complete patent application... so you can see why it's important to have it drawn up properly and in great detail
  2. If you already have your final invention designed and ready for use, you will apply for a complete patent or even a Patent Co-operation Treaty (PCT), which protects your patent in all the countries who belong to this treaty. If you make improvements to your invention after it has already been patented, you can apply for a patent addition or you may even have to apply for a completely new patent

Once your invention has been patented, no one else is allowed to make, sell, import or distribute your product in any way shape or form. The term of a South African patent is 20 years, subject to annual renewal after the third year.

If you want to sell your invention commercially, it's very important to check that some aspects of the design are not patented by someone else, as this could lead to legal action.

It's worth repeating that if you have a viable invention you would like to patent, employ the services of a Patent Attorney or Agent. They know all the ins and outs of this process and will draft your patent specifications in an internationally acceptable manner, so your creation is protected both in South Africa and abroad. Not doing this can result in drawn out legal battles and you losing the rights to your own product.

Free patenting advice and information

The CIPC in collaboration with the South African Institute of Intellectual Property Law (SAIIPL), provides a complimentary service to those who need basic information on patents, patentability of an invention, registered designs and related intellectual property issues.

You can consult, free of charge, with a registered patent attorney on the second and last Wednesday of each month at the CIPC’s offices located in Sunnyside, Pretoria (Boardroom A, First Floor, Block F, DTI Campus, 77 Meintjies Street). This service will be available from 09h00 to 12h00 and 30 minute consultations can be booked by calling: 012 394 5067.

Please note that any professional work required in addition to the free 30 minute consultation will have to be referred to one of the member firms of the SAIIPL. Such work will be charged for at the normal rates of the firm in issue.

For more details on the patenting process go to the CIPC website

Source: CIPRO

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