The Draft National Policy on Intellectual Property, 2013 (‘the Policy’), is an important document. That’s because it provides an insight into how government is thinking about IP and where it should be headed. In a sense, it is a statement of intent and an opportunity for the public to have its say on IP.

The Policy covers a lot of ground, but unfortunately it isn’t always very clear, and it has been criticised for this. The Policy contains quite a bit of “big-picture stuff”. There is much talk about public health, education and technology transfer. There’s the claim that patent law must not restrict access to health care; and that copyright must not stand in the way of knowledge and education; and there’s the statement that South Africa should not renounce patent sovereignty. There are also strong suggestions that South Africa should align itself with the developing world rather than the developed world when it comes to matters IP, and that developing countries should not always adopt the IP models of the West, saying that ‘there is no empirical evidence that developing countries with low promotion of indigenous technologies or innovation are gaining benefits from the IP system.’ There are even suggestions that innovation can be encouraged by ways other than IP, for example through government subsidies and prizes.

There’s very little about registered designs in the Policy and as little about trade marks. However, there is a suggestion that the ambush marketing legislation that was used during the 2010 Football World Cup (and in fact even during the 2003 Cricket World Cup) should be extended to cover all large sports events.

There is a lot of talk about copyright. The Policy recommends against extending the term of protection beyond 50 years (this has already happened in many developed countries), and it suggests that royalty administration and collection be centralised in one state-run collecting society. It makes some fairly vague statements about allowing reverse engineering of software so that it can be adapted for local needs of creating ‘broad exemptions for education, research and library use’ and, more specifically, fair-use rights for internet users for the purposes of education and research. Before the Policy was even released there were reports in the press that it would adopt the WIPO Copyright Treaty and create ‘encryption rights’ – it’s not clear to us where the Policy says this, but it is worth remembering that encryption devices are in common usage and there’s nothing to stop people from using them. The WIPO treaty in fact simply provides that states must penalise the by-passing of encryption devices. 

The issue that has received the most attention - and will probably continue to do so - is the suggestion that the South African patent system should move from a deposit system to an examination system. This is certainly important. The deposit system that we have at the moment basically allows for the patenting of anything provided that the formalities are complied with. No examination takes place to see whether the patent in fact complies with various requirements laid down in the Patents Act in that it is for example, a ‘new invention’, does it involve an ‘inventive step’, and is it capable of being applied in trade, industry or agriculture. Nor is there any examination to establish whether the invention falls within any of the exclusions, for example a scientific theory, a method of doing business, or the presentation of information. These issues are only ever considered if someone applies to revoke (cancel) the patent in a court proceeding, and this generally only ever happens when someone is threatened by the patent - a patent infringement case is often met with an application to revoke the patent.

The downside of the deposit system, of course, is that there could be many ‘weak’ or ‘bad’ patents on the register, and these patents could inhibit people from doing what they should be entitled to do. This is less likely to happen in a system where the patent application is examined to see whether it complies with the various requirements - a system that exists in much of the developed world. The Policy correctly recognises that examining patents requires a great deal of skilled manpower, and that there may be capacity problems in South Africa. It therefore suggests various options, such as getting universities and research institutions involved in the evaluation process and integrating government databases. Intriguingly, it also postulates some multi-faceted system comprising both deposit and examination.

The issue of patent examination is particularly topical in South Africa because there’s been so much talk of the ‘ever-greening’ of patents. This relates to the fact that pharmaceutical companies are accused of sometimes extending their patents - and thereby keeping the generics at bay - by patenting slight modifications, for example the process of manufacture, or the dissolution profile. The issue was highlighted by the recent Glivec case in India, where India’s highest court ruled that Novartis could not patent an improved version of its best-selling Glivec drug because it amounted to ever-greening. The South African government clearly believes that ever-greening will be less prevalent if patent applications are examined. 

As we said at the outset, the Policy can be seen as a statement of intent, or perhaps even something of a wish -list. It is of course quite possible that some of the suggestions made will never see the light of day. But it does suggest that there may be interesting times ahead for IP.