Patent is a set of exclusive rights granted to an inventor by the state government that allows the inventor to exclude others from making, selling or using the invention for a period of 20 years.
A patent is an exclusive right that is granted by the government through the CIPC for a product or process that is new or shows a new way of doing something or a technical solution to a problem (an inventive step). In return for this exclusive right, the government requires the inventor to disclose technical details of how the invention works. This is a way of advancing technological innovation as other inventors will improve on older inventions or develop completely new ways of doing something or solving a technical problem. Patent rights are valid for 20 years from the date of application.
A key point to note is that there is an absolute novelty requirement to obtain patent protection for your invention. This means that in order to obtain a patent, it must not form part of the state of the art. State of the art means that your invention must not have been disclosed orally, in written form or through usage.
A patent is granted for inventions that can be used or applied in trade, industry or agriculture. This is why patents will not be granted for a discovery, scientific theory, a mathematical method, literary works, a method of playing a game or the presentation of information, amongst others.
A key fact to note is that a patent is a territorial right, you can only obtain patent protection in the country in which you applied for protection. To obtain protection in other countries, you need to file patents in those individual countries.
At Tshaya Mashabela, we have highly experienced experts who will guide you through the entire process of obtaining protection for your invention. We offer services which include drafting, filing and prosecuting patent applications, anywhere in the world. We also conduct patent searches and draft opinions which indicate whether or not your invention is new. We restore lapsed patents and assist with enforcement and defending patent rights.
In South Africa, protection can be obtained for two types of designs, aesthetic and functional. An aesthetic design protects an appearance of an article. If a product has new and unique features they can be protected with a design registration. These features can be a pattern, a shape, configuration, ornamentation or a combination of any of these.
These designs are pleasing to the eye and are judged solely by how they look. Think of a MaXhosa Africa suit, Versace dress, a Gucci belt, Christine Louboutin shoes with their red soles, unique furniture, toys, and cutlery and crockery with distinctive designs (Carrol Boyes). These are all considered aesthetic designs. Protection of an aesthetic design is valid for 15 years. The holder of design rights will have the exclusive right to exclude other persons from making, importing, using or disposing of an article to which the registered design is applied.
A functional design is a design applied to an article and necessitated by the function that that article is to perform. Again, these features can be a shape, configuration, ornamentation or a combination of any of these. Integrated circuit topography is an example of a functional design. Protection for a functional design is 10 years. This means that for 10 years, the owner of a registered functional design will have the exclusive right to exclude other persons from making, importing, using or disposing of an article to which the registered design is applied.
It is important to note that one can apply for both aesthetic and functional design protection for the same article. Tshaya Mashabela Attorneys offers service which include filing and prosecuting design applications, anywhere in the world. Tshaya Mashabela can also conduct novelty, validity, infringement and equivalent searches and draft novelty opinions. We also restore lapsed designs and do designs renewals.
Copyright describes rights that creators have over their literary works and artistic works. Works protected by copyright include but not limited to:
- a) literary
- b) musical
- c) artistic
- d) sound recording
- e) programme-carrying signal
- f) broadcast
- g) cinematographic film
- h) Computer programs
- i) technical drawings
Copyright exists automatically. No statutory registration is required. In addition, copyright protection is conferred to the author or creator of the work in about 179 countries which are signatories to the Berne Convention. The Berne Convention is an international agreement between member states that governs copyright.
Copyright protection confers exclusive rights to the author or creator and enables them to exclude others from importing, selling or letting, and distribution of a work. In terms of the duration of the protection:
- a) literary or musical works or artistic works, other than photographs, will be protected for the life of the author and fifty years from the end of the year in which the author dies;
(b) cinematograph films and photographs will be protected for fifty years from the end of the year in which the work is lawfully made available to the public or, failing such an event within fifty years from the making of the work, fifty years from the end of the year in which the work is made;
(c) sound recordings will be protected for fifty years from the end of the year in which the recording is first published;
(d) broadcasts will be protected for fifty years from the end of the year in which the broadcast first takes place;
(e) programme-carrying signals will be protected for fifty years from the end of the year in which the signals are emitted to a satellite.
At Tshaya Mashabela, we have experts that will work with you to extract value from your creative works. We provide all services related to ownership and acquisition and licensing; opinions on enforcement and infringement and resolving copyright disputes. We will assist you to defend your copyright and prevent third parties from infringing your rights. We are also able to assist you with registration of copyright relating to cinematograph films, if desired.
A trade mark is a mark used or proposed to be used to distinguish the goods or services of a trader from the same kind of goods or services of another trader in the industry. A mark means any sign that can be represented graphically and includes a name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour, container for goods or a combination of any of these. The well-known curvy Coca-Cola bottle is an example of a container that is considered as a mark.
Trade mark registration confers to the owner of the mark an exclusive right to use the mark and exclude others. Trade marks can be protected forever, provided that they are renewed after every 10 years.
Tshaya Mashabela Attorneys has experts that will be able to work with you to conduct searches to ensure that your mark can be protected. We will assist you with filing, prosecution and enforcement of trade mark applications locally and internationally. We also do renewals of trademarks.
Domain names are used to identify entities on the internet.
Given the prominence of internet and ecommerce, it is advisable that you register a domain names so as to be easily identified on the internet.
We provide domain name availability searches and registration; lodge or defend domain name disputes.
At Tshaya Mashabela, we have wide ranging experience in commercial and corporate law. Our experts will assist you in the following:
- assist with selection of the most appropriate entity for specific business;
- all transactional arrangement relating to incorporated entities and its members / directors
- company registrations (non-profit company, private company, trusts etc);
- amend and update corporate details of all incorporated entities at the CIPC records;
- b) negotiating, drafting and vetting various agreements, including bu not limited to: collaboration, research and development, material transfer, joint venture, licensing, IP management shareholders, distribution, marketing agreements;
- e) conducting IP and commercial audits, due diligence investigations and valuations;
- f) assistance with meeting exchange control regulations in respect of export of IP;
- g) IP Portfolio review and management;
- h) development of IP Strategy and implementation thereof; and
- i) providing various opinions whilst taking various legislations into considerations regulatory compliance drafting and reviewing relevant documentation and policies to ensure compliance with applicable legislation.
Preparing and filing plant breeders’ rights applications in relation to new varieties of certain lands of plants.
Opinions, agreements and advice for the commercialization of a plant variety.
Negotiating, drafting and vetting various commercial agreements (e.g. Joint Ventures, MOUs, cooperation’s, NDAs, procurements contracts sale, concession, preferred supplier, service level agreements etc.)
OTHER SERVICES
IP Management Training
IP management training is a long-term investment, but a cost-effective one, leading to better utilization of third-party IP resources, more effective internal IP management policies and procedures, and higher efficiency in regard to out-licensing and partnership development.
IP Training in general
Provides assistance to member states to establish intellectual property training institutions (IPTIs). The aim of this work is to enable member states to create their own self-sustaining IP training capacity focused on specific national goals and priorities.
Legislation drafting, policy drafting and reviewing
Legislative review services, including preparation and presentation of detailed comments on draft and existing legislation. Detailed legal opinions on draft and existing legislative provisions. Expertise in compliance-related, gaming law, administrative law and constitutional law implications of existing and proposed legislation.