Patents and copyright are undeniably the most misused words in the creative and innovation spaces these days. This is due to the complexity of their different application that requires a certain unique level of comprehension.
Looking on the bright side, as much as creators today may not be fully cognizant on the actual particulars of these concepts, the simple acknowledgement of their existence is somewhat an encouragement. It depicts a fair level of growth of their faith in the law and understanding of the need to protect the rights in the works they produce.
Patents are one of the oldest forms of intellectual property protection and, as with all forms of protection for intellectual property; the aim of a patent system is to encourage economic and technological development by rewarding intellectual creativity. This article will define what a patent is, the scope of its protection and relevant legislation in Lesotho and South Africa.
What is a patent?
A patent is a legal coverage that is afforded to an inventor of an invention. It is a document detailing the particulars of the invention and thus granting the inventor a legal monopoly on its usage for a certain period of time.
The general theory is that patent protection will provide a reward not only for the creation of an invention. It also for the development of an invention to the point at which it is technologically feasible and marketable. This type of an incentive would promote additional creativity and encourage companies or individuals to continue their development of new technology to the point at which it is marketable, useful to the public and desirable for the public good.
What is an Invention?
The Industrial Property Order No.5 of 1989 defines an invention as an idea of an inventor which permits in practice the solution to a specific problem in the field of technology. It is a product or process that brings a solution to an existing technical problem.
The rationale for patent protection is to protect technological advancements, so it is important that an invention should bring a solution to a technical problem in order to be protected.
What are the requirements for an invention to be protected?
Not every invention will fall within the ambit of patent protection. The patent system has provided a three step enquiry into determining whether an invention can be patentable or not. It is fundamental for creatives and inventors to know these requirements so as to gauge their invention against the possibility of protection. The three requirements are:
The invention must be noble. This basically means that an invention must never have been made before. A simply reproduction, rearrangement, or basic modification of someone else’s invention will not qualify for patent protection. The invention must not have been anything that is publicly known or constitute part of the information that has been in the public domain.
The invention must constitute an inventive step. This means there should be reasonable advancement from the existing art at the time of the conception of the invention. The term “non-obvious” is also used: if it were obvious to a person of ordinary skill in the field concerned, it would not progress to the stage qualifying for patent protection.
The invention must be industrially applicable. Industrial applicability is the ability of the invention to be used in any trade industry (handicraft, agriculture, fishery, pharmaceuticals and services.)
Procedures on filing an application
It is important to highlight that the Patents system like other kinds of intellectual property protection is a creature of statute. That means procedures and particulars of protection are likely to differ from country to country.
This is followed by important note to be made that in order to seek protection of an invention; a general requirement is that an application in line with relevant procedures and requirements ought to be made in every country that the inventor wishes to protect their invention.
Simply put, having received a patent in Lesotho does not automatically render protection in South Africa or elsewhere. The inventor or applicant must file an application in the country they wish to have the patent protected.
What cannot be afforded patent protection?
In Lesotho and South African anything that consists of; discoveries, scientific theories and mathematical methods; plant or animal varieties or essentially biological processes for the production of plants or animals, other than microbiological processes and the products of such processes; schemes, rules or methods for doing business, performing purely mental acts or playing games; Methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body, shall not be afforded patent protection.
The South African Patent Act also includes as non-patentable, computer programs, presentations of information, any products of literary, dramatic, musical or artistic work or any other aesthetic creation.
Being granted a patent over an invention neither guarantees an economic benefit out of that product nor does it guarantee its good performance in the market place. The patent merely provides protection and monopoly against competitors as the owner of the invention pursues its marketing or usage thereof.
The misconception that patent will reward the inventor with success in the market should be done away with and this having being stated, it is up to the inventor to make sure that they have a commercialization plan before they go through the cost of the patent application.
Unless two or more inventors agree otherwise on the extent of ownership each has on the invention, the inventors shall jointly own the invention and it is a legal requirement that they are all mentioned in the patent application as inventors.
The duration of the patent differs from country to country due to the different legislation, but in Lesotho and South Africa, patent protection subsists for a period of 20 years, and in Lesotho the period is subject to extension upon fulfilment of certain conditions of section 14 of the Order.
Patent Filing/ Application
Lesotho’s Intellectual Property registry and South African Patent office are non-examining offices. The only thing an applicant can do is to file with the office a provisional application. Particulars of patent application will be discussed in the next release of the creative insight article titled “Patent applications And What the Inventor Should know”
Adv. Leisa Leisanyane
Business and Entertainment lawyer. LLM in Intellectual Property law candidate at Stellenbosch University. Co-founder of Leinn Inc. Legal advisor of Lesotho Music Rights Association and legal counsel for Junior Chamber of Commerce Lesotho.