Public disclosure of an invention can affect the patent rights available to its owner long before any infringement dispute arises. For businesses seeking protection in South Africa and other African jurisdictions, disclosures made elsewhere in the world can be equally relevant. As a general rule, a patent application should be filed before any non-confidential public disclosure. Filing decisions must also account for the invention’s development and publication history and the markets in which protection will be required.
An earlier demonstration returns in litigation
In Battlekart Europe SA v Chaos Karts, decided in England in July 2025, the patent concerned technology combining physical go-karts with a projected, interactive environment. Battlekart sought to enforce the patent against a competing attraction, but its own earlier public demonstration became part of the material relied on to challenge validity.
The court found that the claim being enforced lacked an inventive step over that demonstration, assessed with the skilled team’s common general knowledge. Other prior art and an added-matter objection also succeeded. The patent was held invalid, defeating the enforcement action.
The significance is more precise than a general warning against publicity. Information revealed by the owner itself contributed to the assessment of whether the claimed invention merited patent protection. A demonstration did not have to reveal every implementation detail to be relevant to the inventive-step enquiry.
The South African position
Section 25 of the Patents Act 57 of 1978 requires, among other things, novelty and an inventive step. The state of the art includes information made publicly available anywhere in the world before the relevant priority date, whether through a written or oral description, use or another form of disclosure.
An overseas exhibition, published technical paper or online demonstration can therefore matter to a South African patent. The assessment turns on what was disclosed, when it became available and how it relates to the claimed invention.
There are limited statutory exceptions. Section 26 addresses, among other matters, certain unauthorised disclosures and reasonable technical trials or experiments conducted in South Africa. These provisions require careful application to the facts and should not be treated as a general permission to disclose before filing.
Coordinating protection across Africa
regional ARIPO or OAPI systemsPatent Cooperation TreatyAn African filing strategy may involve national applications and the regional ARIPO or OAPI systems. The Patent Cooperation Treaty can facilitate applications across participating jurisdictions, but the international application does not itself confer an enforceable patent throughout Africa. The required national or regional steps and deadlines still have to be met. The availability of protection, applicable filing requirements and exceptions to prior-art rules must be assessed separately for each relevant jurisdiction.
The initial filing must also adequately support the subject matter for which priority is later claimed. Material improvements developed after that filing require their own assessment before disclosure. An international business should accordingly coordinate its African strategy with the teams responsible for product development, publications and global launches, rather than treating African filings as an administrative task to be considered later.
Preserving the position before a dispute
A practical review should establish a chronology of demonstrations, sales, publications and communications with third parties. Confidentiality arrangements need to be appropriate to the information shared, with records showing who received it and on what basis. Where disclosure has already occurred, prompt advice is essential to assess which options, if any, remain available. Businesses should also implement internal procedures requiring patent review before exhibitions, investor presentations, publications, product launches or other potentially public disclosures.
The same chronology matters when a patent is asserted against a business. Earlier demonstrations or technical materials can assist a validity assessment, although their relevance depends on the applicable law and the patent claims. Battlekart illustrates how evidence from an invention’s development history can become decisive years later.
KISCH IP advises South African and international clients on patent filing strategies, protection and disputes across Africa, helping businesses identify disclosure risks early and align their intellectual property strategy with research, product development and commercial launches.
