The National Policy on Intellectual Property (IP) seeks to adapt the IP regime of the country to local conditions and integrate it in to the national policies of South Africa including industrial, Agricultural Development, Education, Public Health, Research and Development and Enforcement. On the other hand, the policy seeks to re-align the broader development objectives and matters of public interest.
Patents are a form of Industrial Property that is associated with technology and it can be described as a bundle of rights granted to the inventor of a new product or process that allows the inventor to exclude third parties from making, using, offering for sale, selling or importing the patented product, using the patented process or importing a product made with the patented process for a period of 20 years from the date of filing, unless the inventor gets to assign the rights to a third party.
Patents are territorial in nature and are affected or moulded by policies of the countries that grant them. In this regard, a country is allowed in terms of the Agreement on Trade Related Aspects of Intellectual Property to take a policy position around issues such as “compulsory and voluntary licensing” and “parallel importation”. These issues are relevant for accessibility and affordability of medicines.
In the current SA Patent Act 1978, parallel importation is not catered for whilst compulsory licensing is not informed by the recent Doha Decision on public health and intellectual property under the WTO processes of the Development Agenda. The Patents Act as it stands therefore does not address issues of pricing of medicines, but the policy seeks to address such. Further, grants and incentives may be introduced in order to encourage innovation by the locals through the policy options available to member states of WTO.
Harmonisation of Laws should take place in Africa. The Proposed Pan African Intellectual Property Office (PAIPO) is fully supported by South Africa as it will lead to IP being dealt with uniformly. We are hoping that the areas of disagreement will be ironed out soon. South Africa is seeking to use the patent related flexibilities as set out in the TRIPS agreement of WTO.
In South Africa there is no patent extension or restoration but we are under pressure to provide for such. In this regard an initial recommendation is that there should be no patent extension/restoration as there is no standardised timelines in the world to deal with common granting standards. Until such time that harmonisation takes place, it would be difficult for SA to introduce patent extension or restoration.
South Africa wants to undertake substantive search and examination of patents so as to have strict rules that frustrate granting weak patents as is the case currently through the ”Depository System”. Weak patents frustrate accessibility and affordability of medicines and technologies. With regard to the aforementioned, we are considering going the Substantive search and Examination route.
As we all know generic medicines are manufactured based on a patent that has expired or is no longer under patent protection. Due to public policy option available to the state, the state may allow the working on the patent before its expiry for purposes of allowing generic medicine development. Such workings are not regarded as infringing as long as competition with the innovator does not take place before the expiry of the patent or the developed generic medicine is not released into the channels of commerce before the expiry of the patent. Our Patents Act, 1978 allows generic medicines to be developed before an expiry of the patent.
Generic medicines may contribute to the reduction of prices of medicines as they are not involved in research and development. South Africa will assist in the development of technical capabilities for the development of the generic industry. This may assist in the accessibility and affordability of medicines.
• South Africa will amend its legislation to address issues of parallel importation and compulsory licensing in line with the Doha Decision of the WTO on IP and public health
• Incentive schemes in the area of IP in general will be developed in order to achieve its
• Competition law will continue to apply to the patent regime where there is over-
concentration, dominance or abuse.
Copyright legislation is out-dated in South Africa as it dates back to 1978 and does not take into consideration the advances in the digital arena thus needs to be overhauled especially in view of the WIPO treaties that have come into being in the recent past. The treaties in question are the Beijing treaty, the Marrakesh treaty amongst others.
The South African Government is also looking at the issue of collective management of royalties in view of complaints from industry stakeholders especially royalty payment in view of artist dying poor. In 2011, I established the Copyright Review Commission whose mandate was to basically look at the collective management in the country and come up with recommendations. Some of the recommendations are that the Copyright legislation must be brought up to speed with the developments taking place at international level, one super collecting society per right must be brought into being in South Africa and local content must feature in extensively in local radio stations as the quotas’ are not adhered to currently and these need to be enforced.
In conclusion, the comment period on the policy ended on the 17th of October 2013. The majority of the comments are positive and are commending the South African Government in taking this major step in coordinating its efforts in the IP sphere both nationally and internationally.
A conference on this policy is being planned for the month of November to focus specifically on main issues that transpired from the public consultation process. Dates and venue will be communicated as soon as all logistical arrangements are finalised.
Enquiries: Sidwell Medupe-Departmental Spokesperson
Tel: (012) 394 1650
Mobile: 079 492 1774
Issued by: The Department of Trade and Industry
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