Intellectual property rights are divided into a number of different categories, each of which is regulated by its own act, or by the common law. Patents and designs make up two of these categories. The proprietor of a patent or registered design is afforded a legal monopoly over an invention or design, so that it can have and enjoy, for a limited period of time only, the whole profit and advantage accruing by reason of the invention or design.

A patent is an exclusive right granted by the government to an inventor, or another party who has acquired from the inventor the right in the invention, in exchange for a full disclosure of the invention to the public, and can only be obtained for an invention which is new, inventive and capable of being applied in trade or industry or agriculture. Due to the novelty requirement, it is vital that an invention be kept secret, or only disclosed to third parties in confidence, before a patent application is filed.

A patent seeks to protect the underlying concept of an invention, and not necessarily a specific embodiment thereof, so that the protection extends to multiple embodiments of the concept to thereby afford the proprietor as broad as possible protection.

Similar as with a patent, a registered design is an exclusive right granted by the government to the proprietor of a design, in exchange for the design being disclosed to the public. Registered designs protect the appearance of articles and can be filed as either aesthetic designs or as functional designs. Aesthetic designs are registered exclusively for the aesthetic appearance of articles, whereas functional designs are registered for features that are, at least to a certain extent, dictated by their function. In the case of an aesthetic design, the article needs to be new and original, and in the case of a functional design, it is required that the article is new and not commonplace in the art in question.

In the case with a registered design, the protection is aimed at the appearance of an article embodying the design, and is therefore not aimed at protecting an underlying concept.

It thus follows that patents and designs are in fact two separate and distinct forms of intellectual property, with each providing a different right. A product may be the appropriate subject matter for a patent or a design, or in some instances both. Therefore, when developing a new product it is vital to protect it against unauthorised use by others thereby ensuring that suitable protection is in place before launching it to the public.

Werner van der Merwe

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