Abstract

This article examines the assignment of inventions and the consequent validity of patent applications under South African law, focusing on entitlement to apply for a patent and compliance with s 27 of the Patents Act 57 of 1978.
There has been uncertainty under s 27 regarding whether an applicant’s entitlement based on an assignment must be perfected before filing, or whether post-filing confirmatory assignments can cure defects in entitlement at the filing date.
Using a case analysis of Regents of the University of California and Others v Eurolab (Pty) Ltd and Others, the Court of the Commissioner of Patents held that where an applicant’s right to apply derives from an assignment by the inventor(s), that assignment must exist prior to filing; the absence of such an assignment at filing led to revocation for non-compliance with s 27(1). The analysis is supplemented with brief comparative insights from jurisdictions that are more permissive about post-filing assignments, highlighting South Africa’s stricter pre-filing entitlement requirements.