South African ‘freedom to operate’ searches, in other words patent clearance searches, are frequently conducted with a view to ascertain whether the manufacture, importation, or sale of a particular product or the use of a particular process, would infringe on any in-force South Africa patents.

In a recent survey, it was reported that over 50% of companies taking part admitted that they had embarked on R&D only to discover that the product, process or related technology in development was already protected by a competitor’s patent.

In order to conduct a ‘freedom to operate’ search in South Africa, the class-relevant abstracts of all granted South African patents spanning the last 20 years are consulted as a first step.

Previously, all patent abstracts were published in the South African Patent Journal; however, in November 2010 the South Africa Patent Office migrated from the paper publication of the Patent Journal to an electronically generated Patent Journal.

KISCH IP houses and maintains a complete classified paper-based database of approximately 600 000 records of South African patent abstracts spanning the period from January 1953 up to and including December 2010 (when the electronic Patent Journal replaced the paper publication). 

KISCH IP prides itself as housing the only complete South African database of classified paper-based patent abstracts known in the world (the paper-based records of the South African Patent Office at CIPC have become depleted over time and as a result, the accuracy of conducing searches through these paper-based records cannot be guaranteed). Accuracy of the records through which ‘freedom to operate’ searches are conducted is paramount to the reliability and accuracy of freedom to operate searches themselves.

It will be appreciated that the paper-based patent abstracts are essential in carrying out ‘freedom to operate’ searches in South Africa and will be for at least the next 14 years (since the electronic Patent Journal only encompasses records spanning the last 6 years).

Whilst ‘freedom to operate’ searches seek to demonstrate that a product or process does not infringe any in-force patents, such searches can provide added advantages: should a company’s product or process be found to infringe an in-force patent, the company could consider challenging the validity of the patent in question, licensing the technology at issue, or making design-around improvements or changes to the product or process to avoid infringement.

KISCH IP’s paper-based database is an invaluable tool that is integral in performing accurate freedom to operate searches in all fields of technology.

Written by Ursula Baravalle, Director, Patent Attorney, KISCH IP