Don't let the idea pirates hijack your invention
Inventors should conduct an infringement search before spending money
YOU may not invent anything as life-changing as the telephone or the light bulb, but registering a patent is vital for entrepreneurs whose businesses revolve around an invented product.
"The idea behind patents is to give people the incentive to invent," says Colin MacKenzie, attorney at Adams and Adams. "If there was no incentive, for example a monopoly right on the invention for a period of 20 years, people wouldn't bother to invent."
In essence, a valid patent enables an inventor to take action against any other party who exploits the product it covers.
MacKenzie says patentable inventions can stem from simple, but original, ideas. "The invention must be new and comply with novelty requirements and must involve an inventive step. Although the statutory definition of "new" is complex, if the product is known in any way to the general public anywhere in the world, it is not new and therefore cannot be patented.
"It must not be an 'obvious' invention, and must be sufficiently different to justify monopoly right. The novelty factor is also critical and it is the duty of the applicant to investigate the novelty of the invention."
The inventor then has to provide information to the patent attorney, in order for a provisional specification for provisional registration to be prepared.
The inventor must outline how the invention works, how it differs from what's been done before, its advantages and, if possible, must provide drawings, rough sketches or even an actual model.
"By filing a patent application, the inventor is able to disclose his product freely to others and to test it technically and commercially," says MacKenzie. "Public disclosure before an application is filed will almost certainly prevent a valid patent from being obtained whereas disclosure after an application has been filed will not. But a patent application does not immediately give you the right to stop others from marketing a similar invention - only a granted patent can be enforced - but it will give you priority over anyone else who later files a patent application for a similar product."
MacKenzie says inventors often make the mistake of rushing out and telling people about their "novel" invention before registration, only to find that someone has stolen their idea. "Keep it secret. Public disclosure or commercial use of an invention by the inventor himself before he files a patent application will almost certainly invalidate any patent that may be granted."
The estimated cost of preparing and filing a patent application accompanied by a provisional specification is R3 000-R6 000 although the actual cost depends on the complexity of the invention.
"The filing of a provisional patent application secures a priority date for the applicant's rights in the same way as a complete application and affords an opportunity for the novelty, technical merit and commercial value of the invention to be investigated before further patenting costs are incurred."
The owner of the patent is then allowed to fine-tune the invention before the final specification is presented to the public. Developments and improvements after the filing of the provisional patent application can be covered in the complete application or in a further provisional application.
The cost of preparing and filing a complete specification is usually between R4 000 and R8 000.
MacKenzie says inventors should conduct an infringement search at the Patent Office in Pretoria before spending money on the exploitation of their inventions.
A novelty search can also be requested in order to ascertain the extent to which the invention is novel. Inventors who wish to patent their products internationally should file separate applications for each country.
A patent is valid for 20 years from the date of filing of the complete application and is subject to the patent being maintained by the payment of the prescribed renewal fees after a three-year period and on an annual basis thereafter at a cost of R350-R500.
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