If an inventor believes that he or she has solved the energy crisis with an invention that is novel, inventive and industrially applicable, they might assume that the invention is patentable in accordance with Section 25(1) of the Patents Act (57/1978). However, is this the case?

It is generally accepted that any machine that claims to produce more energy than it consumes is contrary to the laws of thermodynamics and can therefore be classified as a 'perpetual motion' machine. Patent attorneys are frequently confronted with inventors who believe that they have created a viable perpetual motion machine. These inventions are usually accompanied by a multitude of complex calculations and derivations pointing to a result that almost inevitably seems too good to be true.

Section 36 of the Patents Act provides for this eventuality, stating that the registrar will refuse any application that is frivolous on the basis of it claiming as an invention "anything obviously contrary to well established natural laws". Further, Section 61 provides that any person may, at any time, apply for the revocation of a patent that should have been refused on the basis of Section 36. The Oxford Dictionary defines 'frivolous' as "not having any serious purpose or value". However, the interpretation of what is possible or frivolous is limited by existing knowledge. Such provisions could therefore be argued to deter a broadening of present understanding or hamper ingenuity.

The vast number of hopeful inventors attempting to obtain patent protection for perpetual motion machines, none of which have thus far succeeded in disproving the laws of thermodynamics, clearly illustrates the reasoning behind exclusions such as those found in Section 36 of the Patents Act. Similar provisions exist in most countries and jurisdictions – for example, in the United States, perpetual motion machines are not patentable on the basis of lacking utility, unless the application is accompanied by a working model made available to the US Patent and Trademark Office for testing purposes. The same should be true in South Africa. Clearly, a working prototype should be sufficient to nullify any contention based on frivolity and the corresponding application should theoretically succeed (subject to the normal patentability requirements).

As such, while the perpetual motion machine may, at present, seem implausible, inventors are advised to use their resources to build a working prototype, rather than pursue protection for an unproven concept. Should an inventor succeed in trumping known principles and developing a working and feasible prototype, the inventor is advised to keep it a secret until he or she has consulted a patent attorney.

For further information please contact Louw Steyn or Jaco Theunissen at KISCH IP by telephone (+27 11 324 3000) or email ([email protected] or [email protected]). The KISCH IP website can be accessed at www.kisch-ip.com.