According to the World Intellectual Property Organisation a patent is an exclusive right
granted for an invention in the country where a patent has been granted, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application. The right is granted for a fixed period of time, typically such as in South Africa, for 20 years from the date of application for the patent and subject to annual renewal (maintenance) fees being paid by the due date. In some other countries the term is slightly longer than 20 years and in the USA, for example, the patent term is adjusted to exceed 20 years if the processing of the patent by the Patent Office takes longer than expected.
The patent application has to include a description of the invention which discloses the invention sufficiently so that it can be performed by a person of ordinary skill in the art in question without further substantial experimentation having to be done. Many inventors baulk at this but it should be seen as a deal which the inventor and the state strike i.e. for disclosing the invention to the world fully you get an exclusive 20 year right to exploit the invention whereafter the invention belongs to the world i.e. forms part of the state of art that anyone can use without compensating the patent owner.
The patent application also has to include a section entitled “Claims” where the specific new and inventive aspects of the invention which are being claimed as being the exclusive right of the patent owner are described in a prescribed manner and this is the portion of the patent which is referred to when there are allegations that a patent has been infringed by a third party.
In South Africa, the patentee can, if infringement of the claims of the patent can be proven, get an interdict against an infringer and claim damages for any losses suffered. In some other countries there is also the possibility of punitive damages and other damages claims.
It should always be borne in mind that patents are territorial in nature and a patent only grants rights in the country where it has been granted. The popular term “world patent” is based on a fallacy. “World patents” do not exist. Instead separate protection must be applied for in each country individually, although there are procedures that can be followed which can reduce the complexity thereof, for example, by filing a Patent Co-operation Treaty patent application which is an international patent application which, however, does not become an international patent but requires national patent applications in each country where patent protection is required based in the Patent Co-operation Treaty application.
A patent does not offer any protection for brands, logos, or identifying marks used in trade, and to obtain protection for these a Trade Mark application is required as discussed herebelow.
Get in touch with us should you wish to obtain a patent.