South African Patent Law and Practice Flashcards

Comprehensive practice flashcards based on lecture notes covering South African Patent Law, including the Patents Act 57 of 1978, international treaties, patentability requirements, procedures, and enforcement.

What is the primary legislation and associated regulations governing patents in South Africa?

The Patents Act $57$ of $1978$ (as amended) and the Patent Regulations, $1978$.

According to the 2019 Intangible Assets Financial Statement Impact Comparison Report, what percentage of S&P 500 company value was comprised of intangible assets in $2018$?

$84\,\%$.

Which set of rules, established in $1474$, is considered the earliest codified patent system in the world?

The Statute of Industrial Brevets (Venetian Patent Statute).

List the three main principles of the Paris Convention for the Protection of Industrial Property.

1. Principle of priority right, 2. Principle of national treatment, and 3. Common rules.

What are the four basic requirements for patentability as defined in Section $25(1)$ of the Patents Act?

The invention must be an invention by definition, must be new (novel), must involve an inventive step (non-obvious), and must be capable of being used or applied in trade, industry, or agriculture (utility).

According to Section $25(2)$, what categories of items are specifically excluded from being considered an invention?

a) A discovery; b) a scientific theory; c) a mathematical method; d) literary/dramatic/musical/artistic works or aesthetic creations; e) schemes/rules/methods for mental acts, games, or business; f) computer programs; g) presentation of information.

What is the 'negative right' provided by a statutory monopoly such as a patent?

The right to prevent others from exploiting the patentee's invention for a limited period.

Under Section $25(11)$, which medical-related activities are deemed not capable of being used in trade or industry?

Methods of treatment of the human or animal body by surgery or therapy or of diagnosis practiced on the human or animal body.

What is the difference between a first medical use and a second medical use claim format?

1st medical use: 'A compound X for use in the treatment of disease Y'; 2nd medical use (Swiss-type): 'The use of compound X in the manufacture of a medicament to treat Z'.

Define the standard of 'absolute novelty' as applied in South African patent law.

An invention is new if it does not form part of the state of the art immediately before the priority date, comprising all matter made available to the public anywhere in the world by written/oral description, use, or any other way.

Identify the four-step test for inventiveness (non-obviousness) established in the Ensign-Bickford case.

1. Identify the inventive step; 2. Determine the state of the art at the priority date; 3. Identify how the step goes beyond the state of the art; 4. Decide if the step would be obvious to a person skilled in the art.

How long is the standard term of a patent in South Africa according to Section $46(1)$?

$20$ years from the date of application.

What is the standard deadline for entering the PCT national phase in South Africa, and to what can it be extended?

$31$ months from the priority date, extendable to $34$ months under Section $43E(3)$.

What does Section $30(3A)$ require an applicant to declare regarding complete specifications?

Whether or not the invention is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

What is a 'Patent of Addition' under Section $39$, and what are its renewal fee requirements?

A patent for an improvement or modification of a main invention; its term matches the main patent's remainder, and no renewal fees are payable for it.

Under Section $47(2)$, what two requirements must be met for the restoration of a lapsed patent?

The omission to pay renewal fees must have been unintentional, and no undue delay must have occurred in making the application.

What is the 'Bolar Provision' (Section $69A$)?

An act of non-infringement allowing the use of a patented invention on a non-commercial scale solely for purposes reasonably related to obtaining and submitting information for regulatory requirements.

According to Section $56(2)$, when is patent rights considered abused regarding commercial working?

If the invention is not being worked on a commercial scale or to an adequate extent after $4$ years from application or $3$ years from sealing (whichever is later) without satisfactory reason.

What are the three remedies available to a plaintiff in infringement proceedings under Section $65(3)$?

a) An interdict; b) delivery up of infringing products; and c) damages (or a reasonable royalty in lieu of damages).

Define a 'clerical error' as interpreted in the McCauley Corporation Ltd v Brickor Precast case.

A mindless, unintentional, or careless error made in writing, copying, or through a mechanical process.