SOUTH AFRICAN PATENT

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

1. Procedure for obtaining patent protection for your invention in South Africa

According to South African practice, either a provisional or a complete specification may be lodged with the application for a patent.

If you have not worked out your idea in detail yet, and intend to conduct further experiments and make further improvements, you are advised to instruct us to prepare and lodge for you at the South African Patent Office a provisional specification initially in order to provide you with temporary protection. The provisional specification is an important document, which will later form the basis for the complete specification and/or any foreign patent applications. It should be drawn up professionally and with great care and should contain as much detail as possible. A poorly drawn provisional specification may be completely worthless from a legal point of view. Furthermore, the disclosure of any aspect of an invention not properly covered in a prior-filed provisional application will later preclude the valid obtainment of protection for such aspect. As of the year 2009, our charges for the preparation of a provisional patent specification of average complexity are normally between about R 10 000.00 and R 15 000.00. Obviously, specifications of greater complexity than the average will cost more.

The filing of a patent application accompanied by a provisional specification must be followed by a fresh patent application with a complete specification in order to obtain a patent. Such fresh patent application must be filed within twelve months from the date of filing the provisional specification (an extension of three months can be obtained on payment of a fee) in order to claim priority from the date of filing of the provisional specification. As of the year 2009, our charges for the preparation of a complete patent specification, based on an earlier provisional patent specification drafted by ourselves, are on average between about R 6 000.00 and R 10 000.00 depending on the nature and quantity of new information to be added to the specification.

In a case where the full practical details of your invention have already been developed, a complete specification may be lodged "in the first instance" i.e. without filing a provisional application initially. This procedure will render the overall cost somewhat lower than in the case where a provisional specification is lodged initially. As of the year 2009, our charges for the preparation of a complete patent specification "in the first instance" (of average complexity) are normally between about R 12 000.00 and R 17 000.00.

However, if for the time being you only require temporary protection for the purpose of testing the commercial possibilities of an invention, you may prefer to lodge a provisional specification initially even if the information available might be adequate for a complete specification. In this manner you can reduce your initial cost and prolong the maximum total term of your patent by up to 15 months.

If, after a provisional specification has been filed you make further important discoveries or improvements in connection with the invention before the period for lodging the complete specification has expired, you are advised to have one or more additional provisional specifications lodged in order to protect the improvement or new discovery. Subsequently it is possible to cognate (combine) the different provisional specifications in a single complete specification. If such further discoveries or improvements are not included in one or more additional provisional applications same must be kept secret in order to be validly included in a subsequent complete application.

If a complete patent application is still pending (i.e. not yet granted), fairly associated improvements or modifications subsequent to the filing of the complete application can be included in the complete application by way of a supplementary disclosure (provided such improvements or modifications have been kept secret).

Once a complete application has been granted, subsequent improvements or modifications to the invention can be protected by the filing of an application for a patent of addition (provided such improvements or modifications have been kept secret). Otherwise, an independent patent application can be filed to protect such subsequent improvements or modifications. Whether or not a patent of addition is called for rather than an independent patent has to be determined carefully in each specific case.

It is important to note that a complete specification is also deemed to have been lodged in South Africa in cases where a PCT application designating South Africa is lodged, provided that an application for national phase entry of such PCT application is filed at the South African Patent Office within the prescribed period (31 months from the earliest priority date of the PCT application).

It is also important to note that the South African Patent Office does not investigate the validity of patent claims. However, the validity of a patent can be attacked at any time by others.

2. Procedure for obtaining patent protection for your invention in countries outside of South Africa

With respect to obtaining patent protection in countries outside of South Africa, it is important to note that South Africa is a member of the International Patent Convention (also referred to as the Paris Convention). In terms of this convention, you are entitled to claim the priority of the date of application of your South African patent, should you wish to obtain patent protection for your invention in other countries, on condition that these foreign patent applications and/or a PCT application are lodged within one year from the date of first filing in South Africa (or another member country of the convention).

Most important countries are members of this convention. For the purpose of priority rights in foreign countries, a professionally prepared provisional specification filed in South Africa will form a suitable basis.

Please click on the title "Foreign Patents and the PCT" for more information, in this respect.