PATENTS, AN INTRODUCTION
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 application.
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 category.
2. Validity requirements in general
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 by an experienced member of our staff. Although a good search may sometimes be expensive, it may prevent you from wasting money eventually.
At least initially, we do not normally recommend that a search be conducted to determine the novelty of an invention. The reason herefore is 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 involving large expenses.
This precaution is also recommended before investing heavily in somebody else’s patent, before embarking upon expensive litigation against an alleged infringer, or before commercialising an invention that may be covered by an existing patent.
We have the ability to conduct various types of international searches on computer, including novelty searches covering some 35 patent issuing authorities.
4. 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, carried out by an experienced member of our staff.
5. Procedure for obtaining patent protection for your invention.
The first step (for our South African clients) to obtaining patent protection in several countries is normally the filing of a provisional patent application at the South African Patent Office. Please click here for more information, in this respect.