Patent rights

A granted patent gives you the following rights:

  • the right to prevent others from making a product that is covered by a patent claim;
  • the right to prevent others from importing a product that is covered by a patent claim. Note: “exporting” is not an act proscribed by a patent. However, “exporting” presupposes that the person either “made” or “imported” the product (both of which are infringing acts);
  • the right to prevent others from disposing of / offering to dispose of (i.e. selling, donating and advertising) a product that is covered by a patent claim;
  • the right to prevent others from using a product that is covered by a patent claim; and
  • the right to prevent others from exercise a method that is covered by a patent claim.

These rights are actionable against: (i) manufacturers, (ii) importers / distributors; (iii) retailers; and (iv) users of your patented product.

Effectively, the patent rights exclude others from trading in or using your patented product within each country you have obtained a granted patent.

However, since patent rights are territorial, if you only have a South African patent, your South African patent will not prevent your competitor from: (i) making the patented product in Botswana; and (ii) selling it in Zimbabwe. But, your patent rights would be infringed if he makes the product in Botswana and exports it to South Africa (as, from a South African perspective, such “export” from Botswana constitutes an “import” into South Africa).

Your patent rights are determined by your patent claims. For your patent to be infringed, a competing product must include EACH feature in one of your patent claims. See our examples of patent claim interpretation to determine whether a competing product infringes the patent rights.

The cost to obtain patent rights in South Africa by filing a South African provisional patent is R9,950 plus vat. Foreign patents need only be filed up to 30 months later.

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