Dos and don’ts

Do

  • Ensure that intellectual property (IP) developed by contractors is assigned to you in writing
  • Conduct a patent search through freely available internet databases before filing any application
  • Ensure that any patent application cites all inventors that contributed features mentioned in the claims / features to be claimed in the complete application
  • File a provisional patent application first if you foresee making improvements / modifications to the invention during the coming year or if you intend to file patents in more than three foreign territories
  • Ensure that your provisional patent specification includes proper drawings (without dimensions)
  • Set out your patent filing strategy at an early stage to ensure sufficient cash flow, when required
  • When considering your IP filing strategy, consider the acts that you wish to prevent people from performing – making, using, disposing (including offering to dispose), exercising (a method) and importing – focus on territories where the patented product can be made or imported/used
  • Mark your product with your trademark/design/patent number(s), once registered. This will enable you to claim damages for infringement
  • File corresponding patent applications in foreign countries or a PCT patent application within 12 months of filing your first patent application (typically your provisional patent application from which you claim priority)
  • File corresponding design applications in foreign countries within 6 months of filing your first design application
  • File a PCT application if you intend to file patents in more than three foreign territories, but ensure that you simultaneously file applications in non-PCT member countries
  • Consider tax and exchange control issues when assigning intellectual property
  • Claim related R&D (s11D) tax incentives (calculated at 150% of R&D salary and consumables cost) on research expenditure
  • Consider protecting not only the product but also the method of making the product, the method of using the product and the machinery to manufacture the product

Don’t

  • Disclose your invention to anyone before filing a patent application, unless such disclosures are subject to confidentiality undertakings
  • File designs no more than 6 months following any public disclosure
  • Use “puffery” in your patent specification or claim that your invention solves various problems. A patent is not a marketing document
  • File functional design applications for spare parts
  • Make a profitable sale using your invention before filing a patent application
  • Post-date your provisional patent application if you intend to file corresponding patents in foreign countries
  • Re-file your provisional patent application if the invention has been disclosed to the public in the interim. And, if you do re-file your provisional patent application, consider first abandoning your original application
  • Institute infringement proceedings in respect of your South African patent until 9 months following grant
  • Threaten anyone with your granted patent / design without first sending a polite, non-threatening letter informing the person of your patent / design, citing your patent / design number and attaching a copy of your patent / design
  • File a patent / design in the name of two or more applicants unless the applicants have concluded a joint ownership agreement
  • File patent applications for business methods, methods of playing a game, methods of performing a mental step, scientific theories; or mathematical methods. Obtain professional advice if you wish to patent a computer program
  • Grant an exclusive licence without appropriate escape clauses or minimum royalty provisions

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