FAQs regarding patents and patent law

How do I file a patent application?

A patent application can be filed as a provisional patent application, or as a complete patent application. A provisional application must be 'completed' by the filing of a complete application within twelve months. An extension of three months can be obtained in South Africa for the filing of a complete application following on a provisional application. After that the application will lapse.

There are several advantages to following the provisional - complete route:

• A provisional patent application can usually be filed with the minimum of delay because claims to the inventive features of the invention are not required in a provisional patent specification, and informal drawings can be used to illustrate the invention.
• The cost of filing a provisional patent application is less than that for the filing of a complete application.
• A provisional application gives the inventor an opportunity, within the twelve-month period prior to completion, for the novelty, technical merit, and commercial prospects of the invention to be investigated before further patenting costs are incurred.
• Developments and improvements which occur after filing the provisional patent application can be covered in a later application, eg in the complete patent application or in a further provisional patent application.

The filing of a complete application in the first instance, instead of a provisional patent application, is only advisable if the applicant is completely satisfied that the invention has been perfected and that further improvements or modifications are unlikely.

If you need more information, please click here to download our information document on Patents for Inventions.

What is a patentable invention?

The Patents Act does not define an invention. It simply states that a patent may 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 (section 25(1)).

Certain inventions are excluded from patentability. They are 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; or the presentation of information (section 25(2)). However, an invention incorporating one or more of these items as a feature of the invention, may still be patentable.

In general, a patent will not be granted for an animal or a plant or an essentially biological process for the production of an animal or a plant, unless it is a microbiological process or the product of such a process. It is, however, possible to obtain protection for plant varieties by the grant of plant breeders' rights. For further information regarding plant breeders' rights, please click here to download our Plant Breeders' Rights pamphlet.

Transgenic animals and plants and methods of doing business are patentable in many countries, but our law has not yet finally resolved the question of the patentability in South Africa of transgenic animals and plants, methods of doing business or computer software. Our approach is to file applications for inventions including these items as features of a more comprehensive concept.

A patent will further not be granted for a method of treatment of the human or animal body by surgery or therapy or diagnosis. However, a substance or composition for use in such a method is patentable even if the substance or composition itself is known.

A patent will also not be granted for anything contrary to well established natural laws (eg perpetual motion devices).

For more detailed information please click here to download the document Patents for Inventions. For a broader overview please click here to download or read the document on General Information on the Requirements for Filing and Prosecution of Patent Applications.

Who may apply for a patent?

An application for a patent can be made by the inventor (or by the inventors) or by another person (or persons) or by a legal entity such as a company, provided that the person (or persons) or the legal entity has acquired the right to do so from the inventor or inventors (eg. by assignment).

If you need more detailed information please click hereto download the document Patents for Inventions.

What are the costs for filing patent applications in South Africa?

The costs (including disbursements) depend on the complexity of the invention and the application procedure adopted. Currently, our charges for drafting and filing a provisional patent application are, for average cases, between about R7000 and R14000. However, for complex inventions charges can rise above R14000.

More work is involved in preparing complete applications, and our charge for preparing and filing a complete application is, for average cases, about R8000 to R14000. Again costs will be higher for complex inventions. Where a complete specification is to be filed in the first instance, costs may be higher. We can provide a closer estimate upon receipt of details of the invention and instructions regarding the application procedures to be adopted.