Novel Patents and Designs

Posted on Feb 5, 2010

Novel Patents and Designs

The practice of granting a monopoly over the production and distribution of an invention, or its fundamental idea, is the exclusive field of the law of patents. It was conceived specifically to protect the intellectual activity and aims to stimulate revolutionary technology. Across the scope of intellectual property law, patent protection is the only form that approaches the protection of pure ideas or concepts while other forms of IP law protect the expression of ideas in various forms.

The Law of Patents

The law of patents is based on the maxim prior tempore, potior iure (first in time, first in law). It is therefore simply a question of first registration – the party who achieves a registered patent over his invention will have the strongest (or in most cases exclusive) title to that idea.


The Patents Act 57 of 1978 defines a patent as “any new invention which involves an inventive step and which is capable of being used in trade, industry or agriculture” and grants the holder the exclusive rights to “exclude other persons from making, using, exercising, disposing of or […] importing the invention”.

As such, patents protect the commercial value of ideas and are therefore often of exceedingly great financial value. The most common patentable inventions are derived from:

  • Biotechnology and life sciences
  • Chemistry and chemical engineering
  • Mining, mechanical and civil engineering
  • Electrical and electronic engineering
  • Software engineering/programming
  • Nanotechnology

Requirements for patent protection

To qualify for protection, the patent must relate to a product, a process or both. Any product (such as a machine, a genetic formulation or scientific compound, a microchip or electronic circuit or any apparatus) or process (any series of steps regardless of its result) is patentable.

To receive registration as a patent, an invention must meet the following requirements:

  • The invention must have a technical character – the creation should be of an industrial or mechanical nature or have practical application in the arts or sciences,
  • The invention must be complete – the cause and effect (relation between the steps taken by the inventor and the patented result) should thus be feasible (theoretically) and repeatable,
  • The invention must be beyond the state of the art – a novelty in the process or result of the invention is required compared to all previously known technology in the field and should not be obvious or lacking inventiveness to a knowledgeable person,
  • The invention must be capable of use in trade, industry or agriculture – it is not required that the invention be intended for actual use, financially or practically feasible but at least possible of finding application if all else is equal.


However, certain inventions are not patentable and excluded by the Act because it does not qualify as an invention or does not meet one or more of the requirements for registration:

  • Discoveries (any product or process happened upon and not the result of human activity)
  • Scientific theory
  • Mathematical methods
  • Literary, dramatic, musical or artistic work or any other aesthetic creation
  • Schemes, rules or methods for performing mental acts, playing games or doing business
  • Computer programs as such
  • Presentations of information
  • Any variety of non-GM (genetically modified) animal or plant or any essentially biological 
process for the production of animals or plants (except a micro-biological process or the product of such a process)
  • Any method of treatment of the human or animal body by surgery or therapy or of diagnosis practiced on the human or animal body.


Registration & Maintenance

The Patent Office, under control of the registrar, receives and administers all patent applications. The application may be for a provisional patent or a final application, and must be accompanied by a patent specification. In the case of a final application the patent specification usually contain a description of the invention, its manner of performance or results achieved and a set of illustrations, drawings, diagrams or schematics to describe and delineate the invention.

A registered patent will endure for a period of 20 years from the date the first application was filed. However, unless the annual renewal fee is paid to the Patent Office, the patent will lapse at the end of the last year for which the renewal fee was paid.

To enable the protection of a patent registered in the Republic, it is necessary to receive registration of the same patent in every foreign jurisdiction or registration for a regional or international patent according to the Patent Cooperation Treaty.


The Law of Registered Designs

While patents protect the underlying ideas, the law of registered designs enable the protection of the outwardly visible, aesthetic (or otherwise) appearance of the physical embodiment of any concept.

It is possible to register a design that was intentionally created (often referred to as ornamentation) or merely the result of a manufacturing or other process. In addition, in the Republic it is possible to register a functional design in terms of the Designs Act 195 of 1993, and is a novel approach to the protection of designs in foreign and international law. However, functional designs are also considered according to its visual appearance and, therefore, do not provide protection for the function/utility of the design.

As a result, a dual register of designs is maintained, divided into (1) aesthetic designs and (2) functional designs.

To qualify for registration (in either category) a design need not display an aesthetic quality or any minimum level of visual appeal. However, the design must be applied to a surface (of any article) and be discernable by the human eye alone, although it need not be immediate apparent.

In addition, the design must be novel (compared to all other known designs) and original (in the case of aesthetic designs) or non-commonplace (in the case of functional designs). Finally, the design should be intended for reproduction by an industrial process.

Certain designs are, however, excluded from registration:

  • Incidental designs – a design (feature) that is solely necessitated by the function that the article is intended to perform,
  • Construction designs – a design method or principle itself is not capable of registration, although the design produced on an article as a result of that process may be protected,
  • Spare-parts designs – no design, feature or pattern, shape or configuration of the spare parts of a machine, vehicle or equipment in the case of a functional design.

An application for registration, along with one or more representations of the design and a definitive statement, is deposited with the registrar of the Designs Office. A registered design will endure for 15 years (aesthetic designs) or 10 years (functional designs) from the date of application. Registration must be renewed annually (at a fee), starting from the third year after the registration is granted.

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