Patents in South Africa

In order for an invention to be patentable, it must be new and inventive. “New” means that the invention must not be known to the public anywhere in the world. If the invention is a development or an improvement of a known product or concept, it may well be new and patentable. If the invention is identical to an existing product or concept, it cannot be new and is not patentable in South Africa (and most other countries for that matter). The South African patent system is a non-examining system. This means that a patent application is not checked to see whether the invention is new or not. Accordingly, the application will proceed to grant regardless of the novelty of the invention, and the granted patent will be deemed valid until proven otherwise. However, a third party may at any future time in the life of the patent object against its validity, if they can show that the invention was not new when the application was first filed.

Prior to filing a patent application and to avoid filing an application for an invention that already exists, we are able to conduct a preliminary fixed-time novelty search through the European and American patent offices’ databases to get an indication of the novelty of the invention. The search results then provide us with an opportunity to identify those features of the invention that distinguish it from the prior art. Given that a South African patent application is not checked for novelty, the preliminary novelty search is not compulsory and may not be necessary if you are convinced of the novelty of the invention.