Legislative Implementation of Flexibilities - South Africa

Title:	Sections 30 (3A) and (3B), 32 and 61 (1) (e) and (g) of the Patents Act No. 37 of 1952 as last amended by Act No. 20 of 2005
Field of IP:	Patents
Type of flexibility:	Disclosure related flexibilities
Summary table:

Provisions of Law

30. Form of application for a patent

"(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

(3B) The registrar shall call upon the applicant to furnish proof in the prescribed manner as to his or her title or authority to make use of the indigenous biological resource, genetic resource, or of the traditional knowledge or use if an applicant lodges a statement that acknowledges that the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

32. Contents of specification

(1) Every specification shall indicate whether it is a provisional or a complete specification, and shall commence with a title sufficiently indicating the subject-matter of the relevant invention.

(2) A provisional specification shall fairly describe the invention.

(3) A complete specification shall

(a) have an abstract as prescribed;

(b) sufficiently describe, ascertain and, where necessary, illustrate or exemplify the invention and the manner in which it is to be performed in order to enable the invention to be performed by a person skilled in the art of such invention; and

(c) . . . . . .

(d) end with a claim or claims defining the invention for which protection is claimed.

(4) The claim or claims of a complete specification shall relate to a single invention, shall be clear, and shall be fairly based on the matter disclosed in the specification.

(5) Drawings and illustrations, if any, shall be as prescribed.

(6) If a complete specification claims as an invention a micro-biological process or a product thereof and requires for the performance of the invention the use of a micro-organism which is not available to the public on the date of lodging of the application and which cannot be made or obtained on the basis of the description in the specification, the micro-organism shall be dealt with in the prescribed manner.

61. Grounds for application for revocation of patent

(1) Any person may at any time apply in the prescribed manner for the revocation of a patent on any of the following grounds only, namely:

(e) that the complete specification concerned does not sufficiently describe, ascertain and, where necessary, illustrate or exemplify the invention and the manner in which it is to be performed in order to enable the invention to be carried out by a person skilled in the art of such invention;

(g) that the prescribed declaration lodged in respect of the application for the patent or the statement lodged in terms of section 30(3A) contains a false statement or representation which is material and which the patentee knew ought reasonably to have known to be false at the time when the [declaration] statement or representation was made;