In terms of Section 43E of the South African Patents Act, commencement
of the PCT National Phase must take place before the expiration of 31
months from the priority date regardless whether a Chapter II demand
was filed as long as South Africa is elected. The applicant in respect
of an international application designating or electing the Republic
A maximum three month extension is possible for the lodging of the translation and if the applicant does not provide the verified translation of the application within 3 months of entering the national phase the international application concerned shall be deemed to have been abandoned.
The Patent Office may accept late lodging of the translation after the three month extension period but we believe this to be irregular thereby making the patent vulnerable to attack in the Court of the Commissioner of Patent once the patent granted.
2. The Registrar also requires satisfactory evidence that the applicant is entitled to apply for the South African patent, and to this end the standard Assignment is acceptable, although other means of satisfying the Registrar, such as excerpts from employment contracts and Affidavits by employers are also acceptable. This document may be filed within 6 months of the filing date.
3. A Power of Attorney, on South African Patents Form P3 (the standard Declaration and Power of Attorney), is also required to be lodged within 6 months of the filing date although extensions of this period are available.
4. A Statement on the Use of Indigenous Biological Resource, Genetic Resource, Traditional Knowledge or Use on South African Patents Form P26 is also required to be lodged within 6 months of the filing date although extensions of this period are available. We believe this to be limited to South African resources, knowledge or use.
5. Where the Form P26 contains a statement that the invention for which protection is claimed is based on or derived from an indigenous biological resource, a genetic resource, or traditional knowledge or use, the applicant shall, before acceptance of the application furnish the registrar with proof of his or her title or authority to make use of the indigenous biological resource, the genetic resource, or the traditional knowledge or use, by lodging with the registrar one or more of the following:
(a) a copy of the permit issued in terms of Chapter 7 of the National Environmental Management: Biodiversity Act, 2004;
(b) if applicable, proof that prior consent had been obtained as contemplated in section 82(2)(a) or 82(3)(a) of the National Environmental Management: Biodiversity Act, 2004;
(c) if applicable, proof of a material transfer agreement as contemplated in section 82(2)(b)(i) of the National Environmental Management: Biodiversity Act, 2004;
(d) if applicable, proof of a benefit-sharing agreement as contemplated in section 82(2)(b) of the National Environmental Management: Biodiversity Act, 2004;
(e) if applicable, proof of co-ownership of the invention for which protection is claimed;
(f) any other proof to the satisfaction of the registrar.
6. The South African Patent Office will obtain a copy of the International Application, with Article 19 and Article 34 amendments directly from WIPO and copies of the specification, claims, drawings, and abstract are not receivable from the applicant.
7. Where either or both Article 19 and Article 34 amendments have been made during the International Phase, then such amendments will automatically form part of the South African application, however where said amendments were not made in English then a verified translation thereof into English must be provided within 3 months.
8. South Africa is a non-examining country and thus the only examination is to form and not as to substance. It is the duty of the applicant to ensure that the application is valid as to novelty and inventive step.
10. Priority Document.
11. Renewal fees are payable from 36 months after the International Filing date, but may be paid within 6 months of the grant of a patent if a patent is granted more than 33 months after the International Filing date.