Gerhard van Biljon
6 April 2018

So you have a great idea which can seemingly make you millions and you wish to take steps to protect your intellectual property?  The first step which springs to mind is generally to “patent your idea.”  But is this always the correct approach?  Registering a patent is a costly and time-consuming procedure which may not only not be the best choice, but in certain circumstances also possible.

Every country has their own laws regulating the registration of patents and, due to the fact that patents, like most other intellectual property rights, are territorial by nature you would be required to register a patent in each of the countries in which you wish to obtain patent protection.  In South Africa, virtually everything patent related is regulated by the aptly named Patents Act (“the Act”).  The Act contains a so-called “negative definition” of that which is patentable in South Africa.  In short, this means that the Act sets out certain items which cannot be patented in South Africa.  The Act states that a patent may, subject to the provisions of the Act, be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade, industry or agriculture.  It then proceeds to list certain items which cannot be patented in South Africa, viz a discovery, a scientific theory, a mathematical method, a literary, dramatic, musical or artistic work or any other aesthetic creation, a scheme, rule or method for performing a mental act, playing a game or doing business, a program for a computer or the presentation of information.

Consequently, if your money making idea falls within one of the unpatentable categories, you would not be able to register such idea as a patent.  So, let’s say you have designed a new must-have computer program or mobile application and you’re seemingly well on your way to becoming the next Mark Zuckerberg and wish to ensure that your idea is not hijacked by an opportunistic competitor who then goes on to make millions from your creation – What do you do?  The reality of the matter is quite simply that you cannot register your idea as a patent as it falls within one of the categories specifically excluded by the Act.

So what now? Does this mean that you have no legal protection for your idea or invention? This is quite fortunately not the case. There are a variety of different methods in procuring the requisite legal protection.  Let’s use our hypothetical computer program example referred to in the preceding paragraph. Although you may not be able to register the program as a patent, you’d be happy to learn that the Copyright Act makes specific provision for computer programs.  Not only will the “code” itself be automatically protected by South African copyright law, but also the look and design thereof. This is occasioned by the fact that there may be various copyright rights which vest within a single product.  Arguably the best thing about the Copyright Act is that you, as the author, are afforded automatic copyright protection without having to incur any effort or costs, thus negating the need to register a patent.

Apart from copyright which can vest in your idea and grant you protection, other rights which you may have or use to protect your idea include Plant Breeders’ rights which protect efforts made during the breeding of a new variety of a plant, Trademarks which protect the name, phrase or logo of your company and Designs, which also afford you the opportunity to procure a registered right over your design in the form of either an aesthetic or functional design.

Apart from the rights already set out herein, it is also important to note the importance and power of a non-disclosure agreement (“NDA”) which prevents disclosure and commercial exploitation of proprietary ideas and confidential information.  An NDA is often used in business, especially when two parties exchange confidential information and explore the possibility of working together.  An NDA is particularly useful when attempting to get investors involved in your idea without enabling them to appropriate your ideas for their own financial gain.

In conclusion the inability to register a patent may not necessarily spell gloom and doom as your intellectual property could very well be protected by way of employing alternative means which could prove to be less costly and time-consuming. One should however bear in mind that international protection requires careful consideration of the laws of different countries as intellectual property protection in South Africa does not necessarily extend to foreign jurisdictions.

Should you require more information as pertain to the options available to you or be desirous of obtaining assistance in choosing the best option available to you, you are advised to contact a specialist in the field.