patent applications to determine whether the applications meet the formal and substantive patentability requirements. In preparation for the proposed patent regime, the Patent Office has already recruited patent examiners who were trained on search and examination by representatives of the European Patent Office (EPO). The next step of the training started in 2021, which is an experiential learning component in the form of an unofficial search and examination trial period. During this trial period, substantive search and examination of patent applications is carried out and these are sent to patent attorneys who review and respond to the findings. During this phase, the reports will not be legally binding and will not form part of the official application files. SSE can only officially be implemented once the current South African enforce the granted patent will the courts at that point investigate if the granted patent is valid. This is in contrast to other countries, which have an examination system in which an examiner is assigned to each patent application after filing. The examiner will review the patent application to confirm that the subject matter is appropriate for a patent and that all regulatory requirements have been met, and will then conduct a search and issue an opinion as to whether the described invention is new and inventive or not. However, the position in South Africa is changing! On 23 May 2018, the South African Cabinet approved the Intellectual Property (IP) Policy of South Africa which proposes, inter alia, the introduction of Substantive Search and Examination (SSE) of patent applications in South Africa. Under this new system, the Patent Office (CIPC) will examine THOUGHT LEADER 73 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.
RkJQdWJsaXNoZXIy Mjk3Mzkz