The South African economy is the largest in Africa, contributing approximately 18% to the African Gross Domestic Product in terms of PPP. This economic strength combined with sophisticated financial services and commercial infrastructure as well as a well-developed legal system, makes South Africa one of the preferred gateways into sub-Saharan Africa, ideal for investment and also a country to consider when extending a patent portfolio abroad.

Although both Australian and South African patent legislation have their roots in British or English patent law, key differences exist and should be considered when dealing with the prosecution of patent applications and considering enforcement of patents in South Africa.

Key differences

A fundamental difference is that South Africa has a non-examining patent office, which means that patent applications are only examined in terms of formal requirements. The patenting process in South Africa is accordingly (relatively) cheap and costs are very predictable. However, with no examination an onus is effectively placed on the applicant/patentee to ensure that a South African patent proceeds to grant in a valid form and remains in valid form after grant. This is of particular importance as the South African courts will not grant a patentee infringement relief on a partially invalid patent. The courts may also take a patentee’s conduct in leaving a patent in an invalid form into consideration when deciding on matters relating to damages and costs. It is therefore important always to consider amending the claims of a South African patent whenever relevant prior art comes to light.

South African patent legislation does not provide for a grace period or for extended patent terms. There is also no limitation on the number of claims or pages of the specification. In comparison with other countries and in line with patent prosecution costs, renewal fees for South African patents are very low.

The following table is a comparison of the South African patent system with the Australian patent system applicable to applications for which examination was requested after April 15, 2013.

Click here to view table.