Legislative Implementation of Flexibilities - South Africa

Title:	Sections 34, 35, 42 and 43 of the Patents Act No. 37 of 1952 as last amended by Act No. 20 of 2005
Field of IP:	Patents
Type of flexibility:	Substantive examination
Summary table:

Provisions of Law

34. Examinations of applications and specifications.

The registrar shall examine in the prescribed manner every application for a patent and every complete specification accompanying such application or lodged at the patent office in pursuance of such application and if it complies with the requirements of this Act, he shall accept it.

35. Procedure if result of examination of application is adverse to applicant.

(1) If the result of an examination in connection with an application for a patent, or in connection with the specification which accompanied that application, is adverse to the applicant, the registrar may refuse to accept the application or require the application or the specification which accompanied it to be amended in such manner as may be necessary.

(2) If in the case of a convention application the prescribed documents do not accompany the application or are not furnished within the prescribed period, the registrar may deal with the application as an ordinary application.

42. Notice and publication of acceptance of complete specification.

(1) When a complete specification has been accepted, the registrar shall give written notice of that fact to the applicant.

(2) Such notice shall contain

(a) the date of acceptance of the specification; and

(b) a statement that on publication by the applicant in the journal of the acceptance of the specification, the patent concerned shall be deemed to have been sealed and granted as from the date of such publication.

(3) Unless the acceptance is so published in the journal within the prescribed period or within such further period as the registrar may, on application to him and on good cause shown and on payment of the prescribed fee, allow, the application shall lapse.

43. Inspection by public.

(1) After the publication contemplated in section 42, or after being open for public inspection in terms of subsection (3) of this section, the patent and the application and all documents lodged in support thereof shall on payment of the prescribed fee be open to public inspection in the patent office.

(2) When an application which claims a priority date in terms of section 31 (1) is so open to public inspection, any other application from which it claims a priority date and any documents lodged in support of such an application shall simultaneously be open likewise to public inspection.

(3) If the acceptance of an application which claims priority in terms of section 31 (1) (c) is not published in terms of section 42 within 18 months from the earliest priority date claimed from the relevant application in a convention country, it shall be open to public inspection as provided in subsection (1).

(4) (a) After the expiry of five years following the date of application for a patent, any person may apply to the registrar for the patentee to supply the applicant with the prescribed particulars of any search report issued in another country in respect of an application for a patent relating to the same subject-matter which has been lodged in that country.

(b) On receipt of the application, the registrar shall forward a copy thereof to the patentee at the patentee's address for service.

(c) If the patentee fails to comply with the application within three months of receipt of the copy of the application at the patentee's address for service, the applicant may apply to the commissioner for an order requiring compliance with the application.

(d) Upon an application for compliance, the commissioner may order such compliance and, if the order is not complied with, the commissioner may make the further order that he or she thinks fit.