Convention applications
The all-important concept of novelty is tied logically to priority. To go back to the example of companies seeking a cure for COVID-19, we saw that it is fundamental to patentability that the invention must be new at the date of applying for a patent. If the invention forms part of the state of the art, it cannot be new. If an invention is described in a patent application (once it is open to public inspection) it forms part of the state of the art.
Therefore, if an application for a patent is filed the day before your application, once it is open to public inspection it will form part of the state of the art. Hence, your invention will not be new. This is why priority is paramount; and why filing dates are so important.
When a patent application is filed, the relevant form P1 provides the opportunity to state your claim to a priority date. This date can be based on a provisional specification or a complete specification that has already been filed. It can also be based on the date of an application filed in a foreign country, as long as that country is a member of a treaty of which South Africa is a member. These are called ‘convention countries’. The principal convention operating internationally is the Paris Convention for the Protection of Industrial Property.
There is a period of 12 months after the first patent application in a Convention country, to extend the patent in the other signatory countries. Foreign-based inventors and corporations seeking patent protection in South Africa will likely file applications here, based on the complete specification that was prepared and finalised for the initiating application in their home country. The application filed in South Africa on this basis is referred to colloquially as a ‘convention application’.
Read section 31 of the Patents Act.
There are some subtle variations on this theme. Consult a specialist if you are considering seeking patent protection in foreign countries.