An introduction to patents
According the World Intellectual Property Organisation (WIPO) website a patent “is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. In order to be patentable, the invention must fulfill certain conditions”
These conditions are that the invention must be of practical use, and that it is unique in that it is not known in the body of existing knowledge (also known as ‘prior art’) in its technical field. Furthermore, WIPO states, “The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field” (i.e. non-obvious). Lastly, it must not fall within the category of non-patentable matter.
Within the South African context, in terms of section 25 (2) of the Patents Act No. 57 of 1978, the following items are non-patentable matter:
a) A discovery;
b) A scientific theory;
c) A mathematical method;
d) A literary, dramatic, musical or artistic work or any other aesthetic creation;
e) A scheme, rule or method for performing a mental act, playing a game or doing business;
f) A programme for a computer; or
g) The presentation of information.
The problem is that South Africa is a non-examining country. In other words when a patent is filed in South Africa, the patents office merely checks that the prescribed formalities have been complied with (has payment been made and whether the correct forms have been used), and not whether the invention is patentable in terms of the abovementioned section or not.
As a result of this many non-patentable inventions are filed at the South Africa’s Patents Office, the Companies and Intellectual Properties Registration Office (CIPRO), and registered.
Registration of a patent entitles the applicant, in the Republic, subject to the requirements of the Patent’s Act, and for the duration of the patent, the right to prohibit other persons from manufacturing, using, exercising, disposing or offering to dispose of, or importing the invention, so that the applicant has and enjoys the whole profit and advantage accruing as a result of the invention (section 45(1)).
This means that should an applicant register a non-patentable invention, and then the applicant can prohibit all others from using or manufacturing the invention, for example a computer programme or a mathematical method.
Anyone can bring an application for the revocation of a patent of a non-patentable invention, but such applications are extremely expensive in that they can amount to +/- R1, 000,000.00 (one million Rand), and such costs are merely for a High Court decision made by the Commissioner of Patents, and then should the matter go on appeal, the costs could double or even triple.
Another important fact to know about patents is that they are country specific – so if you file a patent in South Africa, it can only be granted and enforced within this country alone. In some regions, a regional patent office exists, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO). These bodies accept regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.
Additional information:
- WIPO FAQ on Patents
- An introduction to patents from MIT Libraries (video)
- Patents (Wikipedia)
- Software Patents (Wikipedia)
- Patents Act No 57 of 1978 (pdf)
The Software Patent Debate
Read an overview on the debate here.
Additional Reading:
