European Union

South Africa

Layout-designs (Topographies) of Integrated Circuits

4. In terms of Section 43(3) of the South African Patents Act, a Convention patent application automatically becomes open to inspection after the lapse of eighteen months from the earliest priority date claimed. No equivalent provisions exist for a non-Convention application automatically becoming open to public inspection after the lapse of an eighteen month period. Does this not mean that, in many cases, the requirements of Article 2 of the TRIPS Agreement, read with Article 2 of the Paris Convention, would not be met? Please explain.

It is correct that section 43(3) of the Patents Act provides that a Convention patent application automatically becomes open to public inspection eighteen months after the earliest priority date claimed. A non Convention application, on the other hand, becomes open to public inspection when it is published in the Patent Journal pursuant to acceptance. Such acceptance must take place within eighteen months from the date of the application (except in certain specified circumstances). It is emphasized that the aforegoing differentiation is not made on the basis of the nationality of the applicant, but on the basis of the nature of the application (i.e. whether convention priority is claimed or not). Applicants of South African nationality are treated in the same manner as applicants who are nationals of other countries in regard to the type of application filed. Article 2 of the Paris Convention requires that national treatment should be extended also to nationals of other Member countries. Article 2 of the TRIPS Agreement requires that this principle be adhered to. It is submitted that the South African position is in accordance with this principle.