Rectifying the register: lapsed patent applications in South Africa


Jaco Theunissen

In the matter of University of Pretoria v The Registrar of Patents, Bone SA and Nicolaas Duneas, the Court of the Commissioner of Patents was tasked with hearing an appeal against a decision of the registrar.

The appellant (University of Pretoria) earlier made a formal request to the registrar to rectify the register with regard to entries made in relation to South African Patent nos 2004/2575 and 2005/08679, both of which are titled ‘A cross-linked collagenous biomaterial’. The appellant’s requests were denied, leading to the appeal to the Commissioner of Patents.

This case underlines the importance of strict adherence to the peremptory provisions of section 40 and section 42(3) of the South African Patents Act 57 of 1978 during prosecution of an application for a patent. If the complete specification is not accepted within the prescribed period, or within such extended period as the registrar may upon request grant, the application shall lapse. 

Furthermore, unless the acceptance is published in the patent journal within the prescribed period or within such further period as the registrar may upon application allow, the patent application shall also lapse.