South African Patent Application

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Release time:2016-05-12

The Patents Act No. 57 of 1978 provides for the granting of patents for inventions that are inventive and can be used or adapted for use in trade, industry or agriculture.

Inventiveness in the invention means that it is not obvious to those skilled in the art, and it is beneficial to improve the technical state of the technical field after the invention appears. Inventiveness is assessed in a relatively narrow range of areas of expertise: inventions that have been filed earlier but have not yet been patented, as well as inventions that have previously been used in secret, are not included in the assessment of "obviousness.

Inventions that are not covered by the grant of a patent include: new discoveries, scientific theories, mathematical methods, literary, dramatic, musical or artistic works or any other aesthetic creation, psychological behavior, competitive games or plans, rules or methods of doing business, computer programs, reported materials, etc., which are considered by the Patent Law to have no motivation for invention and creation. However, if an invention only features one or more of the above items, it may still be granted a patent.

An invention cannot be patented if its publication or exploitation would lead to offensive or unethical behaviour, or if it is used for illegal purposes, or if it violates known laws of nature (such as perpetual motion machines, etc.).

Nor can any kind of animal or plant, biological and microbiological methods of breeding animals or plants, or products obtained by applying these methods, be patented. But they can be protected under the Plant Breeders Act No. 15 of 1976.

 

South African Patent Applications

South Africa is a member of the Patent Cooperation Treaty (PCT) and, as such, it is possible to file in South Africa PCT international patent applications and applications for the entry of PCT patents into the South African national phase.

1. Procedures for entering the South African national phase

According to the PCT, the applicant of an international patent application shall normally have a period of 2O months or 3O months from the date of priority, respectively, when going through the relevant formalities for the entry of the designated or selected country into the national phase. States may, according to their specific circumstances, set a corresponding period of 21 months and 31 months, respectively, in accordance with the Regulations of the South African Patent Act.

Once a PCT application enters the national phase in South Africa, the procedure is largely the same as that of a national application, with the main difference being the format in which the application is filed. In South Africa, the forms required for PCT applications to enter the national phase are P25 and P2 registries, which are the most basic requirements for entering the national phase in South Africa and no longer require form P1 for general patent applications.

Upon receipt of the forms P25 and P2 (in duplicate) provided by the applicant, the new application department of the South African Patent and Trademark Office will provide a South African registration number for the application and immediately send a request to the World Intellectual Property Organization (WIPO) for materials relating to the international application selected for South Africa, including:

Copies of the literature, description, claims, abstract and drawings of the original international application;

A copy of the international search report; If it is not in English, an English translation is required;

A copy of the claims amended under Article 19 of the PCT;

Copies of priority documents;

A copy of the international preliminary examination report (including annexes);

If it is not in English, the international preliminary examination report in English translation should be provided (no attachment is required).

The South African Patent and Trademark Office currently has CD-ROM workstations and is more inclined to receive application materials in CD-ROM form. At the same time, published international application materials can also be downloaded directly from the CD-ROM workstation, which can also be searched by users of the patent system.

Upon receipt of the relevant material from the World Intellectual Property Organization, the formal review process began. According to the Patent Law, the Patent and Trademark Office checks whether the application complies with the relevant requirements of the law, including whether all necessary documents have been submitted in the prescribed manner. These documents include:

Form P3 (the power of attorney must be filed within 6 months of the filing of Form P25);

Form P8, Summary and Drawings (to be filed within 12 months of the filing of Form P25);

Deed of Assignment of Invention (filed within 12 months of filing of Form P25);

Certificate of priority date;

Documents certifying the English translation of the priority date;

Documents certifying a translation of the amendments made in the international phase in accordance with Article 19 and/or Article 34 of the PCT.

When all the above requirements are met, the patent application will be accepted and published in the patent journal. If there is no objection after the patent is issued, the patent application will be formally granted and the patent applicant will be granted a certificate of ownership of the patented invention.

 

2. Some special requirements for entering the national phase of South Africa

Payment of the relevant fees by the City of South Africa as required by the Patent Act;

Proof of translation of the application text;

a certified translation of a modification made in the International Phase under Article 19 or/or Article 34 of the PCT;

Formal formalities must be completed within 12 months from the date of submission of the application in the national phase;

An agent may be appointed during the application process, but must be appointed for non-permanent residents of South Africa.

 

South Africa does not conduct substantive examination of patent applications. The patent examiner simply checks whether the application procedure complies with the formal requirements of the Patent Act. If the examiner considers it qualified, the application will be accepted and the patent will be granted.

A patent is valid for 20 years from the date of filing the patent application in its entirety. Maintain its validity by paying an annual patent fee.

 

Once a patent is granted, the patent holder is entitled to a patent right in South Africa. During the life of the patent, others may not manufacture, use, operate, sell or offer to sell, or import the patented invention, and the patent holder owns and enjoys all the profits and benefits of the patent.

 

Appearance design

The Designs Act No. 195 of 1993 provides for the registration of designs with regard to the visual characteristics of objects.

The Designs Act divides designs into two types, namely:

1. Aesthetic design refers to the characteristics of the pattern, shape, combination or decoration of the object, which can be judged by the eyes, and has nothing to do with the aesthetic taste of the object;

2, functional design, refers to the pattern, shape, combination or decoration of the article, can be demonstrated by the characteristics of the function of the article, according to the definition of functional design category, integrated circuit topology and mask works are also included.

According to the purpose of registration, designs can be divided into 32 different categories. When submitting an application for design registration, it is very important to select the appropriate category or broad category. The scope of the exclusive right to a registered design is limited to the categories specified at the time of registration. If another person uses the design on a category or broad category of goods not mentioned at the time of registration of the design, the act will not constitute an infringement because the article is not within the category of goods specified in the registered design.

As a result of South Africa's accession to the Paris Convention, priority in a Contracting State may be claimed within six months of the first application for registration.

 

Any application for registration submitted within 6 months after the date of publication of the design, which is the date on which the design is first disclosed to the public (without territorial restrictions) with the consent of the design holder or any right holder.

After the design registration authorization, the aesthetic design is valid for 15 years, and the functional design is valid for 10 years, and the renewal fee shall be paid every year according to the regulations. Once a design is registered, its owner is granted an exclusive right to manufacture, import, use or sell goods within the same category as the registered design, identical or similar to the design, without permission.