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Applying for a patent

Patentability What are the criteria for patentability in your jurisdiction? The statutory criteria for patentability are:

  • patentable subject matter;
  • novelty;
  • inventive step (or non-obviousness); and
  • industrial applicability.

What are the limits on patentability? The following cannot be patented:

  • inventions that are contrary to public order or morality;
  • animals and plants and essentially biological processes for the production of animals and plants;
  • diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
  • new or subsequent use of a known product or process; and
  • mere changes in the physical appearance of a chemical product where the chemical formula or process of manufacture remains the same.

To what extent can inventions covering software be patented? Computer programs (or software) are excluded from patent protection. Thus, a claim for a computer program as such may not succeed. However, a claim (drafted in ‘means for’ language format) for a system or device working under the control of a program which, as a whole, makes a technical contribution to the state of the art or improves the effectiveness of the system or device may receive protection. For example, due to the technical purpose of their functionality, the following may be considered patentable:

  • a system for processing a physical entity; and
  • a computer-controlled method for operating an apparatus.

To what extent can inventions covering business methods be patented? In the sense contemplated by the patent legislation, in order to be patentable an invention must result in a “new and useful” or improved product or process (ie, manner of new manufacture of a product). Thus, the following types of business method application will be rejected:

  • a business method application that does not result in a technical or scientific advancement;
  • a business method application that is of an entrepreneurial nature rather than a technological nature; and
  • a business method application that is of an abstract nature and does not fulfil the manner of new manufacture test, which requires a physical anchor to turn an invention into a viable commercial product.

To what extent can inventions relating to stem cells be patented? Excluding human embryonic stem cells and stem cell lines per se, isolated stem cells, their modified versions, novel processes for their isolation or processes involving the use of somatic cell nuclear transfer technology for the development of patient-specific stem cell lines may be protected, provided that the specification describes a specific, concrete and credible function of the cell line, supported by some experimental data or working examples.

Are there restrictions on any other kinds of invention? Restrictions are imposed on:

  • discoveries, scientific theories or mathematical methods;
  • literary, dramatic, musical or artistic works or any other creations of purely aesthetic character;
  • schemes, rules or methods of performing mental acts, playing games or doing business;
  • the presentation of information; and
  • substances that exist in nature or are isolated therefrom.