SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
a certificate of registration, enter the details in the register and publish the particulars by way of notice in the government gazette. If the reg- istrar refuses the application, the decision may be appealed to the appeals board. Copyright The vesting of copyright rights is automatic; therefore, no grant procedure is prescribed. 1.3 Timeline for Grant Procedure A patent can be granted at any time from eight to 18 months from the date of application unless delay of acceptance is requested by the appli- cant. Such a request is a voluntary request in order to delay the acceptance and, hence, the grant of a patent. There is no limit on the number of times an application can be delayed, nor on the length of the delay sought. For registered designs, enforceable rights can be obtained within six months from application, and the grant process can be completed within 12 months from application. For plant breeders’ rights, the grant procedure will depend on the nature of the plant variety for which protection is sought, giv- en that comparative growth trials are conducted during the prosecution process. Typically, the grant procedure takes between one and three years from application. For copyright, there is no grant procedure. The inventor/applicant has to appoint a local pat- ent attorney to act as the address for service if not resident in South Africa. The average cost to grant varies depending on whether the applicant delays acceptance or has amendments to effect, but is usually in the range of USD3,500–4,000. 1.4 Term of Each Intellectual Property Right The terms of the different intellectual property rights are as follows:
• patents – 20 years from the date of lodg- ing the complete specification at the Patent Office or from the international filing date in the case of a national phase application; • functional design – ten years from the date on which the application for a design registration was lodged at the Designs Office; • aesthetic design – 15 years from the date on which the application for a design registration was lodged at the Designs Office; and • plant breeders’ rights – 25 years for vines and trees from the date of issue of certification, and 20 years for all other cases (note: this is based on the 1976 Plant Breeders’ Rights Act No 15 of 1976 (the “PBR Act”). The new Plant Breeders’ Rights Act No 12 of 2018 is set to come into force soon, and it will alter the term of protection to 20, 25 or 30 years depending on the particular kind of plant). Copyright In general, the term of copyright is 50 years from: • the end of the year of death of the author; • the end of the year in which the work is made available or first published; or • the end of the year in which the work is first published, broadcast or emitted as signals to a satellite. 1.5 Rights and Obligations of Owners of Intellectual Property Rights The rights afforded to the owners of different intellectual property rights are as follows. • Patents: The owner of this right may, during the term of the patent, exclude others from making, using, exercising, disposing or offer- ing to dispose of – or importing – the inven- tion, so that the owner may enjoy the ensuing economic and other advantages. Licensees of the patent may enjoy limited rights in rela-
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