Patent Process

Not patentable

In screening research output (primarily in compliance with the IP Rights from Publicly Financed R&D Act) it is important to be aware of what can / cannot be protected. Note that it is still possible to commercialise "Know How" and certain other forms of IP - e.g. microbial cultures and these may need to be reported in terms of the Act. The page primarily deals with what cannot be patented, but at the bottom of the page other forms of protection that should also be considered are discussed.

Typically inventions that can be patented have a 'tangible' form / product.

The following cannot be patented:

  • A discovery - e.g. if you were the first person to discover gold, gold could not be patented. Generally microorganisms that are just isolated from nature cannot be patented, unless the isolation process is sufficient unique.
  • A scientific theory - e.g. E=mc2 or relativity or gravity!
  • A mathematical method - generally a formula. Have a look at computer implemented inventions as sometimes a step-wise procedure or algorithm can be be actually be patented if it results in a technical effect.
  • Literary, dramatic, musical, artistic work, presentation of information - all of these are covered by copyright.
  • Rule/method for performing a mental act - e.g. speed reading, etc.
  • Contrary to well established natural laws - patent examiners hate perpetual motion machines!
  • Something that promotes offensive/immoral behaviour or is contrary to law - e.g. an assisted suicide device in South Africa. Generally these will be contrary to law.
  • Plant variety - these are covered by the Plant Breeders Act.
  • Biological process for the production of animals or plants, not being a microbiological process or the product of such a process.
  • Method of treatment of the human or animal body by therapy, or diagnosis practised on human or animal body - is not permitted in terms of the South African law. But for the IPR Act one needs to consider what can be patented anywhere. These can be patented in the USA, so need to be considered.

Note that in terms of the IPR Act one still needs to consider other forms of protection, to patenting, and these include:

Plant breeders rights - for novel plant species

Registered Designs rights - both aesthetic designs (how something looks, e.g. the shape of a Coke bottle) and functional designs (e.g. a tamper-proof cap). These have less stringent novelty requirements than patents.