made available to the public (whether in the Republic or elsewhere) by
written or oral description, by use or in any other way.
(7)
The state of the art shall also comprise matter contained in an
application, open to public inspection, for a patent, notwithstanding
that that application was lodged at the patent office and became open
to public inspection on or after the priority date of the relevant
invention, if—
(a)
that matter was contained in that application both as lodged
and as open to public inspection; and
(b)
the priority date of that matter is earlier than that of the
invention.
[Sub-s. (7) substituted by s. 31 (b) of Act No. 38 of 1997.]
(8)
An invention used secretly and on a commercial scale within the
Republic shall also be deemed to form part of the state of the art for
the purposes of subsection (5).
(9)
In the case of an invention consisting of a substance or composition
for use in a method of treatment of the human or animal body by
surgery or therapy or of diagnosis practised on the human or animal
body, the fact that the substance or composition forms part of the
state of the art immediately before the priority date of the invention
shall not prevent a patent being granted for the invention if the use of
the substance or composition in any such method does not form part
of the state of the art at that date.
[Sub-s. (9) substituted by s. 31 (c) of Act No. 38 of 1997.]
(10)
Subject to the provisions of section 39 (6), an invention shall be
deemed to involve an inventive step if it is not obvious to a person
skilled in the art, having regard to any matter which forms,
immediately before the priority date of the invention, part of the state
of the art by virtue only of subsection (6) (and disregarding
subsections (7) and (8)).
[Sub-s. (10) substituted by s. 31 (d) of Act No. 38 of 1997.]
26.
(11)
An invention of a method of treatment of the human or animal body by
surgery or therapy or of diagnosis practised on the human or animal
body shall be deemed not to be capable of being used or applied in
trade or industry or agriculture.
(12)
Subsection (11) shall not prevent a product consisting of a substance
or composition being deemed to be capable of being used or applied
in trade or industry or agriculture merely because it is invented for use
in any such method.
Prior knowledge or publication of invention excused in certain
circumstances.
A patent shall not be invalid by reason only of the fact that the invention in
respect of which the patent was granted or any part thereof was disclosed,
used or known prior to the priority date of the invention—
(a)
if the patentee or his or her predecessor in title proves that such
knowledge was acquired or such disclosure or use was made without