How to patent an idea in South Africa in three parts: Part one

04 Apr 2023

When you have a big, important idea, one of your first thoughts should be how to protect it. This is where attorneys who specialise in Intellectual Property come into the picture. If your idea is technical rather than artistic (i.e. it involves a product, invention, process or industrial design), then you will want to talk to a patent attorney. If you do, then it’s also a good idea to speak to a patent attorney early in the development process. In any case, once you’ve arranged that first consultation, the following is what you can expect from an IP attorney.

First meeting and your idea

You will usually meet your new patent attorneys in an office or a virtual meeting room, although having the attorneys come to your office is not unheard of. Here introductions would be made, laptops fired up and pens set to paper. You would then explain your product or idea, and the attorneys would listen, take notes and ask a few questions. You don’t have to worry about NDAs and disclosure here, as meetings with attorneys are done in confidence even when you are not yet signed up as a client. This is also one of the best parts of your patent attorney’s job; they love hearing about new ideas and enjoy the energy clients bring into a meeting when you are telling them how your invention will change the world.

IP as tools in a toolbox

Next, the attorneys would lay some of the groundwork. Unfortunately, most people don’t get taught a lot about law, which is a shame, given that we interact with it nearly every moment of our lives. And, even if you are legally savvy, patent law is on the weirdo end of the legal world: a place run by geeks with science and engineering degrees on top of law degrees. Usually, a bit of a primer is needed to bring you up to speed on how patents and IP work.

This is the first big concept you need to know: patents aren’t magic; they are tools. All intellectual property rights are tools, each differently constructed and suited for different tasks. For example, copyright is a tool to prevent people from copying original artistic and literary works (and the source code of computer programmes as well as a number of other types of works). A trademark registration is a tool to protect your product or service’s identity from being diluted by competitors who use confusingly similar trade marks on similar products or services to ride on your reputation. Designs are tools to prevent manufacturers from making look-alike industrial goods. And so on.

So, what is a patent? Put simply, it’s one of those big, robust tools you can use to apply a lot of leverage. Patents are directed towards a new technical innovation (the underlying concept behind a technical product, process, system or device) and provide a registered, territorial, negative right. This means that a patent right must be formally registered to exist, covers only a specific country or region, and once it is granted, gives the patentee the ability to stop other people from doing things in the country or region in which the patent is registered. Things like making, using, applying, selling, offering to sell or importing anything that the “scope” of the patent (defined by the patent claims) covers. It’s a big legal hammer, essentially, that lasts twenty years from the date you file the full (or “complete”) application, so long as it is periodically renewed.

In Part 2, we’ll get properly stuck into the nitty-gritty of how patents work, where you can get one, and how long it takes. Then, finally, in Part 3, we’ll tackle the question of costs and other forms of IP and taking the first few steps.

This article is applicable to all African markets.

Article sourced from KISCH IP.

See also:

• Patent law for beginners
• Patenting a design?
• SAIIPL Submission on the Copyright and Performers Protection Bills to the NCOP
• Intellectual property protection in South Africa

(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.)