COUNTRY : REPUBLIC OF SOUTH AFRICA
CAPITAL : PRETORIA
LANGUAGE : ENGLISH
International Treaties to which South Africa is signatory:
· Paris Convention for the protection of industrial property
· Patent Co-operation Treaty – PCT.
· Agreement on Trade Related Aspects of Intellectual Property Rights –TRIPS.
· · South African legal system is a hybrid as it has 3 legal systems existing in harmony and they are:
(i). South African Common Law comprising largely of a mixture of the Roman-Dutch variant of the Civil Law tradition.
(ii). The English Common Law tradition and
(ii). Customary Law.
· Patents in South Africa are governed by: Patents Act No. 57 of 1978 amended by the Patents Amendment Act No. 58 of 2002.
Patents in South Africa may be granted by:
· South African Patent Office
Inventions may relate to products, processes or industrial applications. Patents are therefore granted to inventions that:
• Are New or Novel
• Involve an inventive step
• Comprise of a process or an Industrial application of the invention.
For an Invention to be patentable, it should contain the following:
(i).Novelty: An invention is considered new or novel if it is not included in the state of the art. State of the art consists of all the information available and accessible to the public prior to the date of the patent application.
(ii). Inventive Step: An invention is said to contain an inventive step if for ‘a man skilled in the art it does not yield results in an obvious way from the state of the art’.
(iii). Industrial Application: of the invention would be ‘when the object of the invention may be produced, manufactured or used in any kind of industry including agriculture’
Inventions pertaining to the following:
• Discoveries, Scientific Theories & Mathematical methods.
• Aesthetic creations.
• Schemes, Rules, Methods for performing mental acts, playing games, doing business as well as Presentation of Information.
• Programmes for Computers.
• Inventions contrary to public order & morals.
• Methods of treatment on humans and animals.
• Plant or Animal varieties or Bio processes for the production of plants or animals.
(i). Application to be filed.
(ii). Nationality of the applicant.
(iii). Name & Address of the applicant.
(iv). Description of the invention.
(viii). Title of the invention , Prior state of the art, & the Technical area of the invention.
(ix) A Request for grant of patent
Once the application is filed, the application is scrutinised for defence & atomic energy aspects.
Examination is also conducted for formality & substantial requirements of the application.
Compulsory Licenses may be granted under the following circumstances:
• Where the working of a dependent patentis to be ensured without infringement of a prior patent, the latter patent would be dependent upon a licence from the prior patent.The proprietor of thedependent patent may, if agreement cannot be reached as to such licencewith the proprietor of the prior patent, apply to the commissioner fora licence to work the dependant patent
• Such licences shall be used only for the specific purpose of permitting thedependent patent to be worked and for no other purposes provided:
(a) the invention claimed in the dependent patent involves an importanttechnical advance of considerable economic significance in relation tothe invention claimed in the prior patent;
(b) the proprietor of the dependent patent granted the proprietor of theprior patent on reasonable terms a cross-licence to use the inventionclaimed in the dependent patent; and
(c) the use authorised in respect of the prior patent is not assignableexcept with the assignment of the dependent patent.
• Any interested person who can show that the rights in a patent arebeing abused may apply to the commissioner in the prescribed manner fora compulsory licence under the patent.
• The rights in a patent shall be deemed to be abused if –
(a) the patented invention is not being worked in the Republic on acommercial scale or to an adequate extent, after the expiry of a periodof 4 years subsequent to the date of the application for the patentor 3 years subsequent to the date on which that patent was sealed,whichever period last expires, and there is in the opinion of thecommissioner no satisfactory reasons for such non-working;
(b) the demand for the patented article in the Republic is not being metto an adequate extent and on reasonable terms;
(c) by reason of the refusal of the patentee to grant a licence or licencesupon reasonable terms, the trade or industry or agriculture of the Republicor the trade of any person or class of persons trading in the Republic,or the establishment of any new trade or industry in the Republic, isbeing prejudiced, and it is in the public interest that a licence or licences should be granted;
(e) the demand in the Republic for the patented article is being met throughimports and the price charged by the patentee, his licensee or agentfor the patented article is excessive.
(f) a licence granted under this section shall include a provision that,subject to adequate protection of the legitimate interests of the licensee,the licence shall, on application by the patentee, be terminated if thecircumstances which led to its grant cease to exist and, in the opinionof the commissioner, are unlikely to recur.
• Any licence granted under this section shall be non-exclusive andshall not be transferable except to a person to whom the business or partof the business in connection with which the rights under the licencewere exercised has been transferred.