Most Read Contributor in South Africa, September 2016
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
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
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
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.
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