Patents

South African Patent Law

The South African Patent System

The Current South African Patent Act 57 of 1978 is based (at least in part) on the repealed British Patent Act of 1977.

South Africa is a “Registration” Country. There is no substantive examination of patents. So long as the requisite forms are filed. A patent shall be granted.

Approximately 16,000 patents are filed annually in South Africa. 

What is patentable

Section 25 of the Patents Act  57 of 1978 sets out what is patentable

Patentable inventions.

(1)  A patent may, subject to the provisions of this section, be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade or industry or agriculture.

(2)  Anything which consists of—

(a)     a discovery;

(b)     a scientific theory;   

(c)     a mathematical method; 

(d)     a literary, dramatic,musical or artistic work or any other aesthetic creation;

(e)     a scheme, rule or method for performing a mental act, playing a game or doing business;

(f )     a program for a computer; or   

(g)     the presentation of information, 

shall not be an invention for the purposes of this Act.

(3)  The provisions of subsection (2) shall prevent, only to the extent to which a patent or an application for a patent relates to that thing as such, anything from being treated as an invention for the purposes of this Act

.

(4)  A patent shall not be granted—

(a)  for an invention the publication or exploitation of which would be generally expected to encourage offensive or immoral behaviour; or

(b)  for 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 a process.

(5)  An invention shall be deemed to be new if it does not form part of the state of the art immediately before the priority date of that invention.

(6)  The state of the art shall comprise all matter (whether a product, a process, information about either, or anything else) which has been made available to the public (whether in the Republic or elsewhere) by written or oral description, by use or in any other way.

(7)  The state of the art shall also comprise matter contained in an application, open to public inspection, for a patent, notwithstanding that that application was lodged at the patent office and became open to public inspection on or after the priority date of the relevant invention, if—

(a)  that matter was contained in that application both as lodged and as open to public inspection; and

(b)  the priority date of that matter is earlier than that of the invention.

(8)  An invention used secretly and on a commercial scale within the Republic shall also be deemed to form part of the state of the art for the purposes of subsection (5).

(9)  In the case of an invention consisting of a substance or composition for use in a method of treatment of the human or animal body by surgery or therapy or of diagnosispractised on the human or animal body, the fact that the substance or composition forms part of the state of the art immediately before the priority date of the invention shall not prevent a patent being granted for the invention if the use of

the substance or composition in any such method does not form part of the state of the art at that date.

(10)  Subject to the provisions of section 39 (6) [Section 39(6) reads The grant of a patent of addition shall be conclusive evidence that the invention is a proper subject for such a patent, and shall not be refused, nor shall any such patent be liable to be revoked or invalidated, on the ground only that the invention claimed in the complete specification does not involve any inventive step having regard to the main invention], an invention shall be

deemed to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms, immediately before the priority date of the invention, part of the state of the art by virtue only of  subsection (6) (and isregarding

subsections (7) and (8)).

(11)  An invention of a method of treatment of the human or animal body by surgery or therapy or of diagnosispractised on the human or animal body shall be deemed not to be capable of being used or applied in trade or industry or agriculture.

(12)  Subsection (11) shall not prevent a product consisting of a substance or composition being deemed to be capable of being used or applied in trade or industry or agriculture merely because it is invented for use in any such method.

26.  Prior  knowledge  or  publication of invention excused in certain circumstances.

A patent shall not be invalid by reason only of the fact that the invention in respect of which the patent was granted or any part thereof was disclosed, used or known prior to the priority date of the invention—

(a)  if the patentee or his or her predecessor in title proves that such knowledge was acquired or such disclosure or use was made without his or her knowledge or consent, and that the knowledge acquired or the matter disclosed or used was derived or obtained from him or her, and, if he or she learnt of the disclosure, use or knowledge before the priority date of the invention, that he or she applied for and obtained

protection for his or her invention with all reasonable diligence after learning of the disclosure, use or knowledge; or

(b)  as a result of the invention being worked in the Republic by way of reasonable technical trial or experiment by the applicant or patentee or the predecessor in title of the applicant or patentee.

 

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