The most recent injunction obtained by Apple against Samsung, as reported recently in the Independent (London), brings attention and focus to the system of patent protection. Is it worthwhile obtaining patent protection? Is the South African patent law up to date and capable of handling the the IT sector explosion?
In South Africa, the Patents Act will grant a monopoly in respect of an invention which is "new". This means that it must not have been known, worked, used or described (such as in any trade journal, patent specification, or the Internet) anywhere in the world. The tests of obtaining registration are very strictly applied.
Patent applicants should be aware that they, too, might destroy the validity of their own patents, by embarking on the use of their invention prior to filing the application at the patents office. This is how strict it can become.
However, if one does obtain a registered patent, this grants the patentee a monopoly for 20 years to make use or sell his invention. Should another third party use that invention, it would constitute an infringement of that patent. It can be stopped and this is in fact what happened with Samsung when Apple claimed that Samsung's galaxy mobiles and tablets "slavishly" copied the I-Phone and I-Pad. Apple was able to secure an injunction against Samsung preventing their sale of the galaxy mobiles in Europe.
There are certain advantages in seeking patent protection in South Africa. One such advantage is that one can obtain a registration fairly quickly; and then be in a position to act against third party infringers. This is a considerable advantage.
However, there is a very serious disadvantage as far as the South African patents system is concerned. It is what is described as being a "non-examining" country. This means that there is no official search conducted by the patents office, in Pretoria, to see whether the invention applied for does in fact meet the strict requirements of section 25 of the Patents Acts - that is, whether the invention has been described in any article elsewhere in the world. That point here is that while a South African patentee can obtain an early patent registration, it would be wise to make sure that it is valid. Therefore, one can conduct searches internationally to see whether one's patent, already granted, is valid in light of what is disclosed by these international searches. The results of these searches may make it necessary to narrow down, or limit to a certain extent, the scope of the patent already granted in South Africa in order to make sure that it continues to be valid; it does not include or cover material or inventions of third parties.
But with the heat of the IT sector being raised, especially in the field of telephony, one should also bear in mind that section 25 of the South African Patents Act does not permit the registration of patents in respect of computers programs. This is something which clearly needs to be looked at.
Similar prohibitions against the registration of patents for computer programs exist in many other countries throughout the world. With the considerable explosion of IT, the courts in the EU started granting patents for computer programs which had a practical effect. This was followed by the courts in the USA. The net result is that patents are now being granted in respect of patents which have a practical application i.e. an IT system which has the effect of introducing some practical application.
This means that companies, especially start-ups, should be very careful in connection with the protection of their ideas and should see whether it may be possible to obtain patent protection, even under the slightly disadvantageous system which is obtained in South Africa.
More importantly, many South African companies simply forget about protecting their brands or trademarks until it is often too late - after they find that somebody else has registered or protected a similar trademark.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.