South African patent law is a most exciting area of law to be practising in during 2023, with a number of dynamic changes lying in the road ahead. As a starting point and to set the scene: in order to obtain patent protection for an invention in South Africa, the invention needs to be globally new and inventive, which is a requirement for patents in all countries around the world. In legal terms, ‘new’ means that the invention cannot have been made available to the public anywhere in the world and in any way. This includes a public disclosure by written or oral description or use of the invention. ‘Inventive’, in short, means that the difference between the current invention and what is globally available cannot be an obvious difference. Put another way, the invention needs to be not just different but inventively different from what is currently globally available. In addition to the new and inventive requirement, South African patent law has some exclusions on what can be patented which is also in line with other countries around the world. For example, business methods, mathematical methods and scientific theories are some of the categories that cannot be patented. A South African patent is obtained by filing a patent application at the South African Patent Office which needs to meet the legal requirements set out in the South African Patent Act and Regulations, some of which are mentioned above. There is, however, one crucial difference between South African patent applications and patent applications filed in other countries, in that South African patent applications are not examined at the time of filing. As long as all the formalities are completed and the correct fees paid the application will proceed to grant as filed. Only if the granted patent is later challenged or an attempt is made to 72 LAWYER MONTHLY JUNE 2023 Projections for South African Patent Law in 2023 Thought Leader Emerging technologies in the AI and virtual space have created bold new prospects for the patents landscape, both internationally and in South Africa – whose unique patent laws have opened a door to further developments. In this feature, Spoor & Fisher partner Lance Abramson expands on the trends he has witnessed in the South African IP sector to date and predictions for how the patent scene will develop from summer 2023 onwards.
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