A distinctive product shape or a clever technical solution can be the most valuable thing a business owns. It can also be the easiest thing for a competitor to copy. Once a product is on the shelf or shown at a trade fair, anyone can study it, and a copy can reach the market within months.
In South Africa, the main tools for protecting the look and the workings of a product are registered designs and patents. Both are territorial, both depend on registration, and both are lost if you disclose your product publicly before filing in the wrong way. Many businesses only discover this after the window has closed.
Both systems are also under review. The Department of Trade, Industry and Competition and the Companies and Intellectual Property Commission (CIPC) have been consulting on a new Patents Bill and a Design Amendment Bill, so it is a good time for businesses that rely on innovation to understand the current rules.
Designs: protecting how a product looks or is shaped
The Designs Act 195 of 1993 recognises two kinds of registered design.
- Aesthetic designs protect the features of an article that appeal to the eye, such as its pattern, shape, configuration or ornamentation. The design must be new and original.
- Functional designs protect the shape, configuration or pattern of an article where those features are dictated by what the article does. The design must be new and not commonplace in the art in question.
The same product can be protected by both types if it has both appealing and functional features. An aesthetic design lasts up to 15 years and a functional design up to 10 years, subject to paying renewal fees.
The six-month window
A design must be new when the application is filed. There is, however, a limited allowance. If you, or someone with your consent, first made the design available to the public, you can still file within six months of that “release date”. After six months, your own disclosure counts against you, and the design can no longer be validly registered.
No examination on the merits
Design applications are checked for formalities, not for novelty or originality. Registration is therefore relatively quick, but a registered design can later be revoked if it was not new when filed. A careful search and a well-prepared application reduce that risk.
Patents: protecting how a product works
The Patents Act 57 of 1978 protects inventions, meaning new and inventive products or processes that can be used in trade, industry or agriculture. A patent gives the owner the right to stop others from making, using, selling or importing the invention in South Africa for up to 20 years from the filing date, provided annual renewal fees are paid.
Some things are excluded, including discoveries, scientific theories, business methods and computer programs “as such”. An invention that uses software to achieve a technical result may still be patentable, which is a matter for careful drafting.
Absolute novelty
Patent law is stricter than design law on prior disclosure. An invention must be new compared with everything made available to the public anywhere in the world before the filing date. Unlike designs, there is no general six-month grace period for your own disclosures. Pitching an invention at a public event, publishing it or selling it before filing can destroy your ability to patent it.
Provisional and complete applications
Many applicants start with a provisional patent application, which secures a filing date at a relatively low cost. A complete application must follow within 12 months, either in South Africa or through international routes such as the Patent Cooperation Treaty if you want protection abroad.
A depository system, for now
South Africa has historically granted patents without examining whether the invention is actually new and inventive. The patent is examined for formalities and granted, and its validity is tested later if it is challenged. That makes it easier to obtain a patent, but also easier for a competitor to attack one. The reforms under discussion propose to phase in substantive search and examination, publication of applications and post-grant opposition, along with a new “utility model” right for smaller innovations.
What is changing
At a CIPC stakeholder workshop in September 2025, the proposed reforms were outlined. Proposals include removing functional designs from the Designs Act and covering that ground with utility models under a new patents law, introducing an opposition period for designs, and preparing for South Africa to join the international Hague system for designs.
These are proposals, not law. Until any new legislation is passed and brought into force, the current Acts apply. Businesses should, however, keep the proposed changes in mind when planning longer-term portfolios.
Other tools that may help
Registered rights are not the only protection.
- Copyright may protect drawings and artistic works, although its use against three-dimensional reproductions of industrial products is limited.
- Trade marks can protect brand names, logos and, in some cases, distinctive shapes or packaging.
- Confidentiality and trade secrets, protected by contract and the common law, can be valuable where an invention cannot easily be reverse-engineered.
- Contracts with employees, contractors and manufacturers should make clear who owns what is created, and should restrict disclosure.
A practical checklist for product businesses
- Before any public disclosure, identify what is new about your product: its appearance, its function, or both.
- Use non-disclosure agreements when discussing the product with investors, manufacturers or potential customers.
- For a patentable invention, file at least a provisional application before any public launch, publication or sale.
- For a design, file before launch where possible, and in any event within six months of the first authorised disclosure.
- Decide early whether you need protection outside South Africa, as foreign filing deadlines run from your first filing.
- Check that employment and contractor agreements assign intellectual property to the business.
- Diarise renewal fees, as rights lapse if they are not paid.
- Monitor the market, and act promptly if you see copies.
How O’Reilly Law can help
We advise businesses on protecting their products and innovations, including how designs, patents, trade marks, copyright and confidentiality fit together. We work with registered patent attorneys on filings where required, draft non-disclosure, development and assignment agreements, and act for clients in disputes over copying and infringement.
Contact us before your next product launch to make sure your design or invention is protected.
Related reading: Intellectual property protection in South Africa · Trade mark infringement and passing off: protecting your brand
This article is general information and not legal advice. Correct as at November 2026.