The Draft National Policy on Intellectual Property was released for public comment in September 2013. The policy aims to co-ordinate and streamline intellectual property legislation in South Africa. Some of the objectives of the policy include “to improve access to IP- based essential goods and services, particularly education, health and food” and to “introduce a public health perspective into the IP laws”. These objectives and the strong focus on health were largely as a result of years of campaigning by organisations like Medicines Sans Frontiers (MSF) and the Treatment Action Campaign (TAC) for cheaper medicines, the price of which these organisations believe are inflated by patents and protection offered thereunder.

While the policy covers a wide range of issues, it is unfortunately not always clear and somewhat ambiguous – an aspect which has received much criticism.

Not much is said about Registered Designs and Trade Marks in the policy apart from the suggestion that ambush marketing legislation, which was used during the 2010 Soccer World Cup, should be extended to cover all large sporting events.

Copyright was afforded a little more attention. The policy recommended against extending the terms of protection beyond 50 years, choosing not to follow many other developed countries. It also suggests that royalty administration and collection should be centralised in one state-run collecting society. Reference is also made to allowing reverse engineering of software, the objective of which is to allow for software to be adapted for local needs of creating “broad exemptions for education, research and library use” as well as fair rights use for internet users.

Patents received the most attention with a strong focus on the patent prosecution system in South Africa. The current system is a deposit based system in which patent applications are only examined as to their formalities. If the application complies with the formalities, the application can proceed to grant. A drawback of such is a system is that more “weak” patents are granted, which could prevent people from doing acts, which, without the existence of the patent, they should be entitled to do. Such patents can only be removed from the register through lengthy and costly revocation proceedings where the merits of the patent are then assessed and decided by the court.

The policy recommends that an examination system be implemented, where patent applications are examined as to their merits. An examination on the merits requires an investigation into whether the invention is novel and inventive. It is believed that this will reduce the amount on “weak” patents that are granted each year. The policy also recommends the adoption of a pre- and post-grant opposition procedure. This will allow all interested parties to challenge patents without having to engage in expensive litigation. The policy does, however, acknowledge that the adoption of an examination system would require a vast array of skilled persons and that South Africa may not have the capacity to implement such a system. The policy suggests the use of the resources and staff of universities and research institutions in the examination process.

The recommendation of an examination system was heralded by activist groups such as the TAC and MSF, who lobbied for the adoption and implementation of a patent examination system for all pharmaceutical patent applications as well as for the strengthening of patent requirements to prevent “evergreening”. Evergreening refers to making small changes to an existing drug which is about to reach the end of its term for patent protection, in order to gain a new patent. The policy addresses these concerns through the recommendation of an examination system. This, it is believed, will result in “stronger” patents being granted, as they have undergone examination and will lead to less patents being granted in the pharmaceutical industry which may prevent generic medicines from being produced.

While the policy is not always clear, it does set out some objectives which give an indication of where IP may be heading in the future. The policy reads much like a wish list and it will certainly be interesting to see how the laws will be adapted to fulfill these objectives.

Hillary Brennan – Practitioner