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Patents

A ‘patent’ is a form of intellectual property. Unlike copyright (which concerns artistic, literary or musical creations1), trade marks (which are brands, in simple terms) and designs (which concern shape, configuration or patterns), patents are registered for inventions – new devices, or methods of doing something.

Such is the ingenuity and creativity of the human mind that we now laugh at the statement allegedly made by the Commissioner of the US Patent Office, in 1899, that he might as well close the office, because everything that can be invented had already, then, been invented.2 According to WIPO,3 in 2018, some 3.3 million new patent applications were filed worldwide, and in the same year 14 million patents were in force. That’s a lot of inventions.

The Patents Act 1978 falls under the authority of the Minister of Trade, Industry and Competition, but for all intents and purposes its day-to-day administration is managed by the Registrar of Patents.

A. Falsification of the register

  1. It is an offence:
    • to make a false entry in the patents register, or cause it to be made;
    • to forge an extract of the register; or
    • to tender as evidence any such false entry or extract whilst knowing it to be false.4

B. False statements to the Registrar

  1. Any person who makes a false statement or false representation to the Registrar, in order to deceive him in the administration of the Act, whilst knowing it is false, commits an offence.5

  2. Any person who tries to influence the Registrar into doing something, or not doing something, by making statements or representations whilst knowing they are false, commits an offence.6

C. Trafficking

It is an offence for any employee in the Patent Office to buy, sell, or deal in any invention, or patent, or any right under a patent.7

D. False claims

  1. It is an offence to practise as a patent agent or patent attorney, or to in any manner hold oneself out as a patent agent or patent attorney unless he is registered as such in terms of the Act, or he practices as an attorney in partnership with a person so registered.8

  2. You may not represent (in any way9) that an article is patented if it is not.10 It is an offence to contravene this prohibition.11

  3. It is also an offence to represent that an article is the subject of an application for a patent if this is not the case – even if it once had been, but the application has since been refused or has lapsed.12

  4. You commit a crime if you use the expression ‘patent office’ in relation to your business, or any other representation suggesting an official connection with the Patent Office.13

  1. This is not all. Many more ‘works’ created by the intellectual efforts – software, for example – are protectable by copyright. ↩

  2. Apparently Charles H Duell, the Commissioner, was not the origin of the quote. See https://patentlyo.com/patent/2011/01/tracing-the-quote-everything-that-can-be-invented-has-been-invented.html. ↩

  3. The World Intellectual Property Organization. See: www.wipo.int – Facts and Figures 2019. ↩

  4. Section 81. ↩

  5. Section 82(a). ↩

  6. Section 82(b). ↩

  7. Section 83. ↩

  8. Section 24(1). ↩

  9. This includes the word ‘patent’, or similar, stamped on the article. ↩

  10. NB. Filing the application for a patent does not mean it is patented. It is only ‘patented’ once the Registrar has granted the application and sealed it with the seal of the Patent Office. ↩

  11. Section 85(1)(a). ↩

  12. Section 85(1)(b). ↩

  13. Section 84. ↩

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