Patents are there to protect inventions.
To make an invention patentable in South Africa, an invention must be new, inventive, and useful. An invention is any new and inventive article of manufacture, machine, process, or composition of matter, that is capable of being used or applied in commerce.
In this definition:
- new | means novel, never been seen before, anywhere in the world
- inventive | means not so obvious that people in the field would develop it without much effort
- invention | certain things, such as computer programs, methods of doing business, methods of playing games, and the presentation of information, are specifically excluded by law from qualifying as inventions, but the potentially disqualified invention might still be patentable if it can be shown to have a real-world, technical effect.
Idea Even though an invention is defined as a thing or a process, inventions are basically ideas. It is the underlying ideathat is protected by patent law. Patent law provides the only legal protection for underlying ideas — the only way to protect an idea is to register a patent in respect of the idea. Patents normally do not protect the detailed implementation of the idea — instead, the patent protects the principles of the underlying idea so that different implementations of the idea will all infringe the patent.
Infringement Pending patent applications (a provisional patent application and a pending complete patent application) confer no rights and cannot be enforced against third parties who make or sell the invention without authorisation. Before grant of the patent, therefore, threats of legal action must be avoided.
- patents do provide protection against slavish copying, but copyright is better for this purpose
- patents do protect the design or shape of an article, but a design registration is better for this kind of protection
- a patent does not protect the name of the product – this is what trade mark registrations are for