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Intellectual property consists broadly of two main categories:

  • industrial property, which mainly vests in inventions, patents, innovations, trade marks, industrial designs and models, trade secrets and expertise; and
  • copyright, which mainly subsists in written, electronic and other forms of information, musical compositions, computer programs (software), and artistic, photographic and audiovisual creations.

The basic rights of ownership of intellectual property are known as “intellectual property rights” (IPR), which are primarily derived from legislation concerning patents, designs, copyrights and trade marks.


Patents and preliminary patents are issued by the Registrar of Patents in Pretoria and are granted in terms of Section 25 of the Patents Act for new and non-obvious inventions that can be applied in trade, industry, or agriculture. An invention may be a new product, process, appliance or composition, or an improvement to any existing product, process, appliance or composition. A discovery of something that already existed, although it was not previously known to humans, cannot be patented since the discovery is due to chance; an invention, on the other hand, requires creative thinking on the part of a person. In summary, an invention must satisfy the following three criteria to be patentable:

  • the invention must be new;
  • the invention must involve an inventive step; and
  • it must be possible to use or apply the invention in trade, industry, or agriculture.

The applicant for a patent must be the rightful owner of the invention. A patent involves a monopoly of limited duration for the exploitation of the invention. It excludes others from manufacturing, using, or selling the invention for a limited period (20 years from the date of submission of the patent application). A preliminary patent provides shortterm preliminary international protection for a period of 12 months, after which a full patent application must be lodged. Renewal fees are payable annually from the end of the third year after application was made for the full South African patent. The protection of the patent lapses if the renewal fees are not paid, unless an extension of time was requested for the payment, which extension may be granted for a maximum period of six months.

Certain inventions and creations are statutorily excluded from patent law protection, including the following:

  • creations that fall purely under the Copyright Act (e.g. literature, aesthetic designs, software);
  • schemes, rules and methods for performing a mental act, doing business, or playing a game;
  • scientific theories and mathematical methods and formulae;
  • the presentation of information (e.g. a database);
  • plant and animal varieties and biological breeding methods (in this regard one should look at protection under the Plant Breeders’ Rights Act, 15 of 1976); and
  • methods of medical treatment (although medicine or medical apparatus or instruments are patentable).
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