The patentability of data and technology in South Africa

Around the world, courts and patent offices are tightening the rules for protecting data-driven inventions. The United States (through Alice and Mayo), Europe (via the “technical character” test), and China (with its four-category AI guidelines) are converging on a common requirement: patents are not for ideas, but for demonstrable technical solutions.

This means that simply claiming an algorithm, dataset, or business method will not suffice. What matters is how the invention works: the novel technical mechanism that improves speed, accuracy, security, or efficiency.

South Africa’s position

South Africa’s Patents Act 57 of 1978 closely follows the European model. To be patentable, an invention must be:

• New (absolute novelty, tested against the global “state of the art”);
• Inventive (not obvious to a skilled person); and
• Capable of application in trade, industry, or agriculture

Exclusions apply to:

• discoveries, scientific theories, and mathematical methods;
• Schemes for doing business or performing mental acts;
• computer programs as such;
• presentations of information (raw data); and
• methods of medical treatment.

But, just as in Europe, if a data-driven invention produces a technical effect (e.g., improved data compression, a novel cybersecurity protocol, or an IoT device that reduces energy use), it may be patentable.

What people are trying to patent

Although data itself usually cannot be monopolised, organisations are actively seeking protection in areas such as:

1. Data structures & processing: new formats, storage systems, or transmission protocols that improve reliability or efficiency.
2. Software & AI: machine learning implementations that reduce resource use, AI-enabled diagnostics, cybersecurity algorithms, or adaptive interfaces.
3. Hardware & infrastructure: semiconductors, IoT sensors, or telecom protocols that support data-heavy environments.
4. Emerging technologies: blockchain consensus mechanisms, quantum error correction, bioinformatics tools, and cloud/edge computing architectures.
5. Sector-specific tools: fintech fraud detection engines, agritech precision-farming analytics, healthtech wearables, and energy-optimisation systems.

In every case, the line is the same: raw data and abstract rules are out; technical application is in.

Strategic implications for businesses

For innovative companies, the evolving landscape means:

1. Draft for technical detail: Don’t just claim “AI” or “data analytics”. Spell out the novel architecture, dataset integration, or hardware linkages that deliver a technical improvement.
2. Document human ingenuity: In AI inventions, record the specific human contributions (problem definition, prompts, adaptations). Courts insist that inventors be people, not machines.
3. Plan jurisdictionally: File broad, early applications in China to stake ground, but invest in highly technical, defensible filings in the U.S. and Europe. South Africa, aligned with EPC standards, rewards technical specificity.
4. Think beyond patents: Where disclosure would undermine competitive advantage (e.g., AI “black box” models), consider trade secrets as part of your IP strategy.
5. Leverage IP intelligence: Use AI-powered search and analytics to track competitor filings, assess risks, and build stronger portfolios.

Protecting innovation

The patentability of data and technology is no longer about what you do with information, but how you turn it into a technical solution. South Africa’s framework—like Europe’s—reinforces this principle, placing emphasis on novelty, inventive step, and technical effect.

For businesses, this is both a challenge and an opportunity. By focusing on technical detail, documenting human contribution, and adopting a multi-jurisdictional strategy, organisations can secure patents that don’t just protect ideas, but create strategic leverage in a competitive digital economy.

How ITLawCo can help

Navigating the patentability of data and technology is complex; the line between unprotectable abstract ideas and enforceable inventions is fine, and getting it wrong can cost both time and competitive advantage.

At ITLawCo, we help businesses cut through the noise. Our team advises on:

• Patent strategy and filings across South Africa, Africa, and global jurisdictions.
• Identifying protectable innovation in data, AI, and emerging technologies.
• Drafting enforceable claims that meet novelty, inventive step, and technical effect standards.
• Portfolio design to combine patents, trade secrets, and licensing for maximum leverage.
• Regulatory and compliance alignment so IP strategy works alongside data protection and AI governance requirements.

With deep expertise in technology, law, and innovation ecosystems, ITLawCo positions your business to secure IP rights that don’t just protect ideas, but fuel growth, investment, and market advantage.