WHAT IS A PATENT?

Patents protect inventions that are new, inventive and capable of being used in trade, industry or agriculture. Whereas: designs protect the shape of articles; trademarks protect trading names and brands; and copyright protects works reduced to material form from being copied, patents protect the technical principle of an invention.

PCT Patent applications

Patents are generally territorially limited. This means that to obtain protection for an invention in a particular country, an application for a patent must be made and a patent granted for the invention in that country. Contrary to popular belief, there is no such thing as a “worldwide patent” (In some cases, however, a regional patent will afford protection in a number of member countries).

Each country has its own laws relating to patents and other intellectual property. Accordingly, in order to obtain patent protection in a particular country, an invention must comply with the requirements for patentability in that country. Although there are many similarities in the patent laws of the different countries, there are also significant differences between countries.
One way of obtaining patent protection abroad is by way of a PCT international patent application.

The Patent Cooperation Treaty (PCT) is administered by the World Intellectual Property Organization (WIPO) in Geneva. South Africa has been a member of the PCT since March 1999. The treaty facilitates the filing of patent applications and allows an applicant, who is a national or resident of a member state, to file a single PCT patent application at a designated receiving office automatically designating all member states, a list of which is attached hereto. It should be emphasized that the PCT patent application does not lead to the grant of a PCT patent, but is merely a means for facilitating the filing of patent applications. In due course, it is necessary for the applicant to file national applications flowing from the PCT patent application in those countries in which patent protection is desired.

Advantages of the PCT system

The PCT system has the advantage that a single patent application may be filed designating many states. In addition, the PCT patent application automatically triggers a patent search of patent databases for relevant prior art, thereby giving the applicant information on which to make an informed decision as to whether to proceed with the filing of national patent applications. Further, the decision as to the filing of national phase applications and the expense involved therein may be delayed for up to thirty months (in some countries thirty one months) from the priority date of a first patent application on which the PCT application is based.

PCT patent applications may be filed as Convention patent applications within the twelve month Convention period from the filing of a first patent application in a Convention country. Alternatively, a PCT patent application may be filed as a first patent application. Since South Africa is automatically designated in a PCT patent application, a national phase application may be filed in South Africa based on the PCT patent application, so that it is unnecessary to file a separate South African complete patent application at the time of filing the PCT patent application. However, in many countries the national application is re-examined and processed it as if it had been an ordinary patent application filed in that country.

Costs

South African nationals (private individuals, not companies) who are resident in South Africa may take advantage of a reduction in the filing fees and examination fees under the PCT system, provided that the application is filed in the name of the South African national or, where there is more than one applicant, that all such applicants are South African nationals.

Requirements

In order to file a PCT patent application, the specification of the priority application may have to be amended to put it in a form suitable for international filing. Alternatively, where no prior application has been filed, a specification will have to be drafted from scratch. Certified copies of the priority documents are required, as are suitable powers of attorney. PCT patent applications, including the specification and all associate documents, may be filed in English.

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. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

Contact our Intellectual Property Department: jana@stegmanns.co.za