For the entrepreneur looking to launch an invention, it is vital that patent protection is in place before given the world access to its brilliance. This protection is decided around 3 factors – the patentability of the invention, the commercial viability of the invention, and the enforceability of the patent.
To qualify for patent registration, the invention must satisfy the extrinsic patentability requirements of novelty, inventiveness and industrial applicability, and must not fall foul of any of the intrinsic patentability requirements, being a set of exclusions listed in section 25 of the Patents Act 57 of 1978. Section 25 includes inventions that would not qualify for patent protection, such as, discoveries, scientific theories, mathematical method, literary, dramatic, musical or artistic works, schemes, rules or methods for performing mental acts, playing games or doing business, computer programs, the presentation of information, varieties of animals or plants and methods of treatment or diagnosis of the bodies of humans or animals.
Any invention that falls outside the scope of these, and satisfies the extrinsic requirements, would qualify for patent protection.
Related: How do I register a patent?
2. Commercial viability
In order to successfully recuperate the time, effort and investment of ingenuity and money into the research, development and protection of an invention, an invention needs to be commercially viable, or in other words, capable of being reduced to a form in which it can be utilised to generate returns on your above-mentioned investments.
By merely filing a patent and sitting on it for the entire 20 year protection provided in terms thereof, a patentees risk doing a doing a disservice to themselves by not reaping the rewards that befalls their innovation.
The object of the patent dispensation is the allocation of a 20 year period of exclusivity to a patentee in return for a full disclosure of the invention so as to enable others to replicate it after the patent term has expired. This ultimately rewards and stimulates innovation.
An effective trade mark strategy may further be of immeasurable value to further promote the commercialisation of an invention so as to ensure that maximum exposure and goodwill in the invention is obtained.
To be effective as a deterrent to potential competitors, a patent must be enforceable. A patentee must therefore be able to prove in a court of law that a person or other body has infringed its patent, and caused the patentee to suffer damages.
Some patents may be infringed by third parties, but proving the infringement may be difficult. An example hereof would be where a person patents a very effective method of drying biltong.
The patent holder would, however, not be able to determine whether or not a particular piece of biltong being sold was dried using his method, and he would not be able to effectively enforce his patent.
Had he however patented the device with which the biltong is dried, he would have been able to stop others from making, using, importing and offering his patented biltong dryer for sale to consumers.