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WHAT CAN YOU PATENT? - Ralph van Niekerk

A patent is, in essence, a relationship between an inventor and the State in which the State gives the inventor certain exclusive rights to the invention for a limited duration, and the inventor agrees

A patent is, in essence, a relationship between an inventor and the State in which the State gives the inventor certain exclusive rights to the invention for a limited duration, and the inventor agrees to make the previously secret invention public knowledge. But what can be patented? Can any idea that any person may come across be the subject of a patent? Or must there be a physical, tangible product?

Almost without exception, all countries in the world require that an invention fulfil two requirements before it may be patented. The first is that the invention must be new, meaning that it must never have been done before. The second is that it must be inventive, which is generally understood to mean that it must not be obvious or trite. These, however, are not the only restrictions placed on what may be patented. Many countries specifically preclude certain inventions from patentability.

In the United States, a recent Supreme Court Decision held that “anything under the sun that is made by man” may be patentable in the United States. South Africa, however, is not quite so liberal. We have a number of exclusions as to what is patentable, the most important of these being:
• business methods,
• programs for computers, and
• methods of treatment of the human or animal body.

These restrictions, however, only apply to the extent that the patent relates to that thing as such. In other words, a process of controlling a blast furnace would be patentable, despite the fact that the process is implemented as a computer program. Similarly, a method of managing a hospital by controlling information flow may be patentable if the method makes use of distinct entities that interact with each other in certain ways.

A common misconception relating to patents is that the invention must have a material existence before it can be patented. This is not true. A “mere idea” can be patented, provided it fulfils the requirements set out above, and a few others that could not be covered in this column.


Ralph van Niekerk is a candidate attorney in the Patents department of the Johannesburg law firm Bowman Gilfillan Inc. For more information, feel free to contact Ralph on 011 669 9638 or r.vanniekerk@bowman.co.za.

 

 
 
   

 

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