South Africa is on the cusp of a significant transformation in its intellectual property (IP) law, with upcoming Patents and Designs Amendment Bills poised to reshape how intellectual property is protected and regulated in the country.

 

At a recent Q&A session attended by key stakeholders, the Department of Trade, Industry and Competition (dtic) and the Companies and Intellectual Property Commission (CIPC) shared updates on the upcoming Bills and provided some insights into how changes will be implemented. 

 

The discussions highlighted both alignment with global best practices and a commitment to creating a more accessible, equitable system for innovators and businesses across South Africa.

 

 

The upcoming Patents Bill is anticipated to introduce the following changes.

 

 

South Africa will move from its current deposit-based system to a phased substantive search and examination (SSE) system. Initially, examination will be introduced in selected technical fields — chemistry, biochemistry, ICT, physics, and engineering — with the intention to expand to all fields within a defined timeframe.

 

Patent applications will be published upon filing, opening the door for third-party observations before examination begins. Applicants will need to formally request examination, with timelines structured to allow consideration of examination reports from other jurisdictions.

 

 

A novelty grace period will be introduced (duration still to be specified) to provide greater flexibility for inventors.

 

To support local innovators, especially SMMEs, utility models (which have a lower inventiveness threshold than patents) will be introduced. Applicants will be able to convert patent applications into utility model applications where appropriate.

 

 

The Patents Bill will incorporate provisions from recent global instruments, including the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK, 2024) and the African Continental Free Trade Agreement (AfCFTA) IP protocols. A key development will be the mandatory disclosure of the origin of genetic resources and traditional knowledge, ensuring alignment with both international standards and domestic legislation such as the National Environmental Management: Biodiversity Act (NEMBA).

 

 

For the first time, post-grant opposition procedures will be introduced, allowing third party challenges on limited grounds. 

 

A new administrative tribunal will oversee compulsory licences, with decisions subject to appeal or judicial review. The Bill also includes measures to implement Article 31bis of TRIPS, supporting access to medicines and other essential technologies.

 

 

Differential fee structures for small and large entities.

 

Circuit layout protection will be shifted from the Designs Act to the Patents Act.

 

A hybrid exhaustion regime, with national exhaustion as the default and international exhaustion applying in certain cases for pharmaceuticals and biological inventions.

 

 

The upcoming Designs Amendment Bill will aim to modernise South Africa’s design law and prepare the system for future international harmonisation. The following changes are anticipated:

During the Q&A session it was also shared that preparations are underway for South Africa to accede to the Hague Agreement on International Registration of Industrial Designs, to enable easier international filing of design applications. Further, discussions are ongoing regarding alignment with the Riyadh Design Law Treaty (RDLT, 2024), which could allow multiple designs to be included in a single application and flexible representation formats such as photographs and animations.

 

 

One of the most promising developments is the progress toward establishing a world-class substantive patent examination system at the CIPC. This shift represents a major step forward in ensuring that South African patents meet international quality standards, providing greater certainty for rights holders and fostering innovation.

 

The anticipated reforms in both upcoming Bills strike a careful balance between encouraging innovation, meeting international obligations, and addressing local socio-economic needs. With implementation expected to be phased and consultative, stakeholders will have opportunities to shape a future-ready IP system that supports South Africa’s innovation ecosystem.