The South African Patents Act, No.57 of 1978, as amended, provides for the registration and granting of patents for inventions and for matters related thereto.

An application for a patent in respect of an invention may be made by the inventor thereof or by any other person acquiring from the inventor the right to apply.

The Act defines what an invention is and also describes in general terms what the positive requirements for patentability are.

Coupled to this there are specific categories mentioned in the Act of unpatentable subject matter.

The Appellate Division in Veasey vs Denver Rock Drill and Machinery Company Limited, has said that the object of protection is "… to reward those who make some substantial discovery or invention which adds to our knowledge…"

For subject matter to be patentable, it involves an inventive step as well as being capable of being used or applied in trade, industry or agriculture.

The key elements are "new" and "further inventive step".

The courts have said that it is new if it does not form part of the state of art immediately before the priority date of that invention.

An inventive step will be deemed if it is not obvious to a person skilled in the art. Where the claimed subject matter is such as persons skilled in the art would naturally try, there is no inventive step. When it is probable that a person skilled in the art would have been lead to do an experiment and arrive at the same result, there is similarly no invention.

The courts have stated that there are three basic stages to an invention:-

1. The definition of the problem to be solved or the difficulty to be overcome;
2. The choice of the general principle to be applied in solving the problem or overcoming the difficulty; and
3. The choice of the particular means to be used.

The mere production of a practical result does not by itself render patent ability. Experimentation does not equal inventiveness.

In terms of the Act, there is a patent office in Pretoria, which is run by the Registrar of Patents who is appointed by the Minister. A register is kept of all patents, which is open for inspection to the public.

There is also a court of the Commissioner of Patents, to resolve disputes in terms of the Act.

As this subject matter is of an extremely technical and difficult nature, attorneys who want to be admitted to the Registrar of Patent Attorneys have to be practicing attorneys who have had to pass an examination.

Once a patent is granted the Patent Act and the court's established in terms thereof will protect an infringement of patent rights. This is normally done by way of interdict, delivery up of any infringing product and/or damages.

2. TRADEMARKS

A trademark is the manner in which the goods or services of a business are distinguished from similar goods or services offered by other businesses in that industry. It is thus a valuable asset of the business and is worthy of protection. It is further important that the trademark be distinctive and should not be confused with trademarks that have already been registered. This is where an experienced and qualified trademark and patent attorney can advise clients best on both the selection of the trademark and searches to ensure that there is no conflict with earlier trademarks. It is certainly advisable to apply for registration of a trademark (although this is not compulsory) as it is then easier to stop infringement of that trademark.

It is further advisable to apply for registration of the trademark before using it. The reason for this is that the application may be rejected and in such cases it would still be possible to amend the said mark. It is also an effective means of stopping infringement during the early stages.

It is also important to remember that any application for a trademark may be opposed by an aggrieved person.

3. COPYRIGHT

In terms of the Copyright Act, copyright subsists automatically in the original work of any South Africa citizen, resident or domicile both prior to publication and after publication.

The subject matter of copyright includes written and musical works, artistic works, architectural works, sound recordings, cine films, television productions as well as copy right in the industrial sector such as drawings of a technical nature, engineering drawings, prototypes as well as three-dimensional reproductions.

The term of copyright is 50 years after the death of the author.

It is once again emphasised that in all cases of intellectual property, a patent and trademark attorney should be consulted.

4. REGISTERED DESIGNS

Many situations arise where new products, which can not be protected by a patent, as they are not a new invention or a technological advancement, but have a certain form and outer appearance, can be protected by a registered design. An application for registration must be lodged within six months after the design was made available to the public in the Republic of South Africa or in any country. The applicant must either be the author of the design or a person or company who has obtained the right to apply for registration from the author. A design registration will protect features or pattern, shape or configuration of a design insofar as they are necessitated by the function which the design is to perform. The other design registrations will protect features of pattern, shape, configuration and ornamentation or a design insofar as they appeal to and are judged by the eye.

An aesthetic design registration lasts for 15 years and a functional design registration for 10 years. An example of an often registered design is for a novel patent of a vehicle tyre or an article of furniture.

As in the case of patentable inventions, an application for the registration of a design should be made before the new product is disclosed publicly.