Draft IP policy of South Africa

South Africa needs to transition towards a knowledge economy, and away from over-reliance on natural resources. A specific framework of conditions is necessary to enable South Africa to make this transition, and an IP Policy is one of the core elements required to achieve this objective.

Despite attention paid to IP law-making in the country, there is a need for a comprehensive IP Policy that will promote a holistic, balanced and coordinated approach to IP that is mindful of the many obligations mandated under the South African Constitution.

The overarching objective is to ensure that this comprehensive IP Policy becomes a just, balanced, and integral part of the broader development strategy for South Africa by assisting in transforming the South African economy, and thereby leveraging human resources for the broader economic benefit, increasing local manufacturing, and generating more employment.

The comprehensive IP Policy will be implemented in a phased approach. This document constitutes the first phase in what will be a comprehensive policy to be developed and updated over the medium term. Phase I covers IP and public health, coordination in international forums, and the implementation of commitments undertaken in international agreements.

The key reforms include:

  • The introduction of substantive search and examination (SSE) for patents, which is a key step towards ensuring that the patent regime fulfils its purpose of stimulating genuine innovation. This will benefit patent holders by granting them rigorously assessed rights, and benefit the public at large by ensuring that market exclusivity is only granted when appropriate. Importantly, substantive search and examination will not only apply in the health sphere; it will eventually have much broader application.
  • The leveraging of flexibilities contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ensure that South Africa protects IP rights while simultaneously promoting public health, local manufacture, research and development, innovation, food security, environmental considerations, transfer of technology and broad socio-economic development.
  • Implementation of the “utility model” to support the registration of patents by resident small, medium and micro-enterprises (SMMEs), historically disadvantaged individuals, and companies who are operating in the informal sector. This entails enacting exclusivity similar to a patent right, granted by a state, to an inventor or the inventor’s assignee, for a fixed period of time. However, the terms and conditions for granting a utility model are slightly different from those for ordinary patent, including a shorter term of protection and less stringent patentability requirements.
  • The creation of a system for protection for traditional knowledge which will safeguard misappropriation and exploitation, as well as promote further research and development into products and services based on traditional knowledge.

Users of IP are prejudiced on the other hand because subject matter that should be in the public domain can be unfairly monopolised by exclusive rights. Moreover, the underlying policy rationale of patents is to serve as an incentive to stimulate innovation. Granting an exclusive right in the absence of genuine innovation is anathema to the proverbial bargain that the patent holder is supposed to strike with society, namely, disclosure in return for monopoly protection, resulting in society being short-changed, and overall negative consequences for both access and innovation.