On 17 November 2017, the IP Unit submitted to the Department of Trade and Industry (DTI) its full set of comments on the Draft Intellectual Property Policy of the Republic of South Africa, Phase I, 2017. Some of our positive initial comments were reported in the media, e.g., here (Fin24) and here (Daily Maverick). The draft policy document was released in August and key aspects of it were summarised in an earlier post. In short, the draft policy is geared towards (i) advancing a balanced and coordinated approach to IP that regulates intellectual property rights in line with the South African Constitution; (ii) introducing key policy reforms that account for the development dynamics of South Africa; (iii) promoting innovation and a knowledge economy; and (iv) leveraging competitive and comparative advantages to advance the transformation of the South African economy. To this end, the draft policy proposes a number of key reforms, including the introduction of substantive search and examination system for patents; the leveraging of flexibilities contained in the TRIPS Agreement; the protection of “utility models”; and the creation of a system for protection for traditional knowledge which will safeguard misappropriation and exploitation.
In our comments, we commend the DTI’s drafting team on creating a well-considered document. We also express our strong support for the policymaker’s intention to link this policy to broader domestic imperatives and strategies — such as the National Development Plan and its emphasis on embracing the knowledge economy — and welcome that Constitutional and Human Rights dimensions of many of the issues raised in the policy document are considered. We submit that by adopting a balanced, coordinated and development- and public interest-oriented approach the policy maker has created a policy document that is context-specific and which addresses current tensions and inequalities, including those between IP owners on the one hand and users seeking equitable access to IP-protected goods on the other.
Our submission contains general and specific comments, and in our specific comments we support, among other things, the policymaker’s proposal to finally introduce a (phased) substantive search and examination system for patents in South Africa. We further submit that more needs to be done still to effectively facility adequate access to the technical and other information disclosed in return for patent protection in South Africa. In addition, we request clarifications and simplifications of the existing legal frameworks concerning parallel importation in both the Patents Act and the Medicines and Related Substances Act, and submit that South Africa can learn from recent experiences in other countries with similar interests, such as India and Kenya. Moreover, we call for a comprehensive enquiry concerning the introduction of additional exceptions to patent protection, with a view of maximising competition and innovation in South Africa. In the context of licensing, we recommend that:
- the reasons and processes for issuing compulsory licences are reviewed to make compulsory licensing a more practical and readily available tool for balancing private and public interests and mitigating excessive pricing, undersupply, abuse etc.; and
- issues such as open licensing, cross-licensing and patent-pooling are also addressed in the future.
We furthermore propose a patent grace period against novelty destroying disclosures, including publications, in South Africa, and strongly support the policymaker’s statement in the context of International IP Cooperation that South Africa must “play a leading role in this global discourse”, especially as a champion for Global South pro-development and pro-innovation concerns.
One important issue that appears to be missing in the draft policy document, however, is the issue of how open science approaches can be leveraged to achieve some of the crucial goals spelled out in the policy document. No doubt, that this will be discussed further at the upcoming SA-EU Open Science workshop in Johannesburg, hosted by the Department of Science and Technology (DST), in partnership with the European Commission.