Why should a South African entity consider filing a patent?

patent application
26 May 2020

A patent is an exclusive right in the form of a limited monopoly that is granted by a country to a patentee for a new invention that involves an inventive step and which is capable of being used or applied in trade, industry or agriculture. A patent does not give the patentee the right to use or exploit the patented invention but rather allows the patentee to exclude others from making, using, exercising, importing, disposing of, or offering to dispose of, the patented invention in that country during the lifetime of the patent.

If an invention is not patented, competitors may take advantage thereof and reverse engineer the invention in order to manufacture a product that is the same or similar without needing to ask for the patentee’s permission. The aforementioned will severely prejudice and undercut the patentee’s significant investment in time and resources during research and development.

Through the exclusive right granted by a patent, the patentee can prevent others from making a product that is the same or similar to the patented invention, which reduces the competition and allows the patentee to become established in the market. In addition, through the limited monopoly granted to the patentee, the patentee is further able to recover its input costs, receive a reward for its inventive contribution to society, and obtain the necessary impetus to motivate the patentee to embark on further inventive endeavours. A patent further provides a strong deterrent for inventions which are easy to be reverse-engineered by restricting a competitor from exploiting a similar product to the patented invention.

By obtaining a patent for an invention, the patentee may also sell or license the patent to another enterprise providing the patentee with a valuable source of income. In view of a patent being regarded as an asset, an enterprise may also increase its bargaining power and image by obtaining patents, which may prove useful for raising funds, finding business collaboration partners, and raising its market value.

A patent that becomes open to public inspection also becomes a strong form of prior art for any patent application that will be filed after the earliest priority date of the patent. As a result of the existence of such prior art, later filed patent applications containing the same or similar invention will be refused by a patent office on the grounds of the lack of novelty or inventive step, thereby hindering competitors to file a patent for similar inventions.

It is also important to consider the possibility that someone else may patent your invention first. The first person or enterprise to file a patent for an invention will have the right to the patent. This may mean that if you do not patent your inventions timeously, someone else, who may have developed the same or an equivalent invention later, may do so and restrict you from exploiting the invention. It is therefore advisable to, at least, file a provisional patent application when the invention is at a stage wherein the inventive concept is clearly discernible from the prior art. Filing of the provisional patent application will reserve the applicant’s priority in the patent application and will prevent disclosure by either the patentee or any third parties from destroying the novelty of the invention thereby protecting the patentee’s ability to successfully apply for the patent.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Jacques Steyn

Jacques Steyn is a candidate attorney at KISCH IP. He has a BEng (Mechanical) from the University of the North West. Read more about Jacques Steyn


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