Membership of International Conventions:

• Paris Convention for the Protection of Industrial Property (1883); Stockholm Act as from 1 December 1947.
• Convention on Establishing the World Intellectual Property Organisation (WIPO). 
• Patent Co-operation Treaty (PCT) as from 16 March 1999. 

General Requirements:

A. Applicant

• The inventor(s), or assignee(s), alone or jointly with others, may apply. 
• Foreign inventors and applicants are also eligible to apply. 

B. Novelty Requirements and Exceptions

Absolute novelty is required. Novelty is destroyed by:

• all matter which has been made available to the public anywhere by written or oral description, by use or in any other way before the priority date; 
• matter contained in a South African patent application both as lodged and as open to public inspection if the priority date of that matter is earlier than the priority date of the invention; and 
• secret use on a commercial scale in South Africa before the priority date. 

Exceptions: 

• disclosure or use which was made without the inventor’s/assignee’s knowledge or consent, and 
• working of the invention in South Africa, by way of reasonable technical trial or experiment, by the inventor or assignee. 

C. Unpatentable

• 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; *
• the presentation of information; *
• an invention the publication or exploitation of which would generally be expected to encourage offensive or immoral behaviour; 
• any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a microbiological process or the product of such a process; 
• a method of treatment of the animal or human body by surgery or therapy. 

* These provisions relate to methods of doing business, computer programs and the presentation of information "as such". This type of invention may very well be patentable in South Africa. For more information see our article entitled "Patenting of Computer Software - related inventions".

D. Priority claims

• Multiple priority claims are allowed. 

In order for the priority claim/s to be valid, the earliest priority claim must correspond to the first application lodged in a Paris Convention country for the invention concerned. 

E. Fair basis

• The claims must be fairly based on the subject matter in the description of the specification.

F. Object clauses

• Laudatory clauses may present problems with inutility and should be avoided. For example, rather than stating that the invention solves a problem in a particular field, it should be stated that the invention addresses the problem.

G. Examination

• Examination is conducted as to form only, and there is no substantive examination. 

H. Publication and Grant

• A Convention application becomes open to public inspection at the Patent Office 18 months from the earliest priority date claimed.
• A non-Convention application become open to public inspection upon grant.
• A national phase application becomes open to public inspection as and when the International application is published (usually prior to national phase entry).
• Notice of the acceptance of an application is published in the South African Patent Journal, accompanied by an abstract and, where relevant, a publication drawing. 
• A patent is deemed granted as of the date of publication of the notice of acceptance. 
• There are no provisions for opposition prior to grant.

I. Term

• The term of a South African patent is 20 years from the date of filing, in the case of ordinary patent applications, or from the international filing date in the case of national phase applications. 
• Extension of the patent term, or extension of protection by way of Supplementary Protection Certificates, cannot be obtained. 

Form of Application:

A. Title

• The title must be descriptive and words such as "improved", "new" and the like should be avoided.

B. Units of measure

• Units of measure must be shown in terms of the SI system, or a conversion should be provided.

C. Omnibus claims

• These are allowable.

 

Filing Requirements

Ordinary Applications:

Minimum formal filing requirements:

• Name(s) and address(es) of applicant(s). 
• Name(s) and address(es) of inventor(s). 
• Specification and claims in the language of any Paris Convention country together with any drawings. 
• Number date and country of the basic application if Paris Convention priority is to be claimed. 

Full formal filing requirements (including time limits):

• Name(s) and address(es) of applicant(s) (required for filing).
• Name(s) and address(es) of inventor(s) (required for filing).
• At least one copy of the specification, claims and abstract in the language of any Paris Convention country together with any drawings (required for filing), preferably in electronic form. 

Note: A foreign language specification must be supplemented with a certified English translation thereof (3 months from filing date).

• Declaration and Power of attorney (form P.3) signed by or on behalf of the applicant - no legalisation required (6 months from filing date).

Download - Power of Attorney

• Assignment from inventor/s where an assignee is the applicant - no legalisation required (18 months from filing date).

Download - Deed of Assignment

• Assignment of priority rights where the applicant in South Africa differs from the applicant in the Paris Convention country - no legalisation required (18 months from filing date).
• Certified copy of the basic application where Paris Convention priority is claimed, together with a verified English translation where necessary (6 months from filing date).
• The class into which the invention falls under the International Patent Classification (18 months from filing date).

Requirements for filing urgent Convention applications:

• Name and address of applicant. 
• Number, date and country of the basic application in a Paris Convention country. 
• Title of the invention. 

Note: an urgent filing must be supported within 14 days by a specification and claims in the language of any Paris Convention country together with any drawings.

National Phase Applications under the PCT

Minimum formal filing requirements:

• International application or publication number and filing date.

Full formal filing requirements (including time limits):

• Name/s & physical address/es of applicant/s (required for filing).
• Name/s of inventor/s (required for filing).
• Translation into English of specification, claims and textual matter of drawings (if filed or published in a language other than English), including any amendments made under PCT Rules 19 and 34 (3 months from filing date).
• Declaration and Power of Attorney (form P.3) signed by or on behalf of the applicant - no legalisation required (6 months from filing date).
• Assignment of invention (where an assignee is the applicant) - no legalisation required - unless a Rule 4.17 declaration was made in the PCT Request (12 months from filing date).
• Assignment of priority rights (where the South African applicant differs from the priority applicant) - no legalisation required - unless a Rule 4.17 declaration was made in the PCT Request. Not required if the assignment is recorded at the IB of WIPO prior to the 30-month deadline in which case a copy of the relevant form PCT/IB/306 should be provided once available (12 months from filing date).
• Copy of published specification, International Search Report and International Preliminary Report on Patentability, any amendments made during the international phase, as well as translations thereof into English, where appropriate, and, if possible, a copy of Form PCT/IB/304 where Paris Convention priority is claimed, for our file, and an indication as to whether the application is to be filed under PCT Chapter I or II.