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10 December 2018
South Africa is widely recognised as the gateway to the rest of Africa, a continent which contains 30% of the world's mineral reserves and 1 billion people. Therefore, it is an attractive launch pad for many international companies in the African market trying to protect and enforce intellectual property for or over products. Even more attractive is South Africa's patent system which is simple, quick and affordable.
When it comes to patents, the Companies and Intellectual Property Commission (CIPC) is custodian of all applications that are filed in South Africa. The country's highly cost-effective depository patent process makes it 20 to 30 times cheaper than other patent regimes. Annual renewal fees in South Africa are also very low, especially when compared with those payable in foreign jurisdictions.
Further, South Africa does not have a substantive patent examination system and the CIPC does not investigate the novel or inventive merit of patent applications. Instead, the CIPC assesses the formal requirements to ensure that all filed documentation is correct. The nature of this formal examination patent process means that the responsibility for ensuring that patent applications filed in South Africa are valid resides with the applicant. Therefore, the involvement of a patent attorney from an early stage is highly recommended.
Obtaining a granted South Africa patent is quick and straightforward. The acceptance of a South Africa patent application generally takes place 12 months from filing a South Africa national phase application or 18 months from filing a South Africa complete application.
There is no patent opposition in South Africa and the validity of a patent can be challenged only post-grant by way of South Africa's court system. However, the requirements for post-grant amendments are more stringent than those for pre-grant amendments.
In view of this, it is common practice for applicants to request that the acceptance be delayed until a corresponding foreign patent, which has undergone substantive examination, has been granted and then amend the claims of the South Africa patent application by way of a pre-grant amendment to conform to those granted in respect of the corresponding foreign patent. By doing so, an applicant can ensure that their South Africa patent is granted with a valid set of patent claims in a cost-effective and simple manner.
South Africa has a credible court system and specialised Patent Court. The first-instance court in patent litigation matters is the Court of the Commissioner of Patents, a specialist court that has the same authority as a single judge of the High Court. Decisions of the Court of the Commissioner of Patents or the High Court can be appealed to the Full Bench of the High Court (a panel of three judges instead of one) or to the Supreme Court of Appeal, the highest court of appeal in all matters, except constitutional matters.
The simplicity and affordability of obtaining enforceable patents, whether to operate in South Africa or as a gateway to the rest of the African continent, is a highly attractive option for foreign companies. Further, having the right IP experts on the ground with extensive African knowledge and experience is the final step to ensuring optimal realisation of IP rights in Africa.
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