Patents

Protecting your new idea

To be patentable, an invention must be new and inventive.  “New”, in this regard, means that the invention must not be known anywhere in the world.  To be inventive, the invention must not be obvious to a person skilled in the relevant art.

Without conducting patentability searches, we cannot comment on the patentability of an invention.  Patentability searches, although never conclusive, can provide a good indication of the patentability of an invention.  The inventor normally has a good idea of the novelty and inventiveness of their invention.  We could provide a quote to perform a patentability search, if required.

Novelty searches, Precedure and Freedom to Operate Searches

A search is not a requirement, and the patenting process can commence without conducting a search, subject to the risk that invention (or any of its major features) are new, by filing a provisional patent application (also sometimes referred to as a pending patent).

Within one year of filing a provisional patent application, the applicant for a patent has to file complete patent applications in all countries in which they are interested in acquiring patent rights in.  Alternatively, prior to filing complete patent applications in each country of choice, an applicant could file a Patent Cooperation Treaty (PCT) patent application which, in effect, extends the one-year period of the provisional patent application, by a further 18 months.  These options are the normal, most common. There are, however, more options other than what is referred to herein.  These options depend on many factors and we discuss all options, in detail, prior to the end of the one-year period of the provisional patent application.  The most important thing is to file a provisional patent application as soon as possible.  The reason for this is that the filing date (also referred to as the “priority date”) of the provisional patent application, is the date on which the validity of future patents granted out of the provisional patent application, is tested.  In other words, a future patent would be valid (subject to some other formalities and requirements outside the scope of this document) if the invention it seeks to protect, was new and inventive at the priority date.

We have stated above that a novelty search is not a requirement.  Another type of search that is also not a requirement, but that should be considered is an infringement or “freedom to operate” search.  An infringement search is done in an attempt to uncover third party patents (or registered designs, if applicable) that may present a bar to entering the market with an invention.  An infringement search is advisable if the entrepreneur intends laying out substantial capital and/or time and effort.  One does not want to be interdicted after starting an expensive and/or time-consuming venture.