There was a report in the Indian newspaper The Financial Express on 11 August 2012 that should be of great interest to anyone who’s involved in patents in South Africa. The article dealt with the fact that, whereas the Indian authorities have been quite keen to ensure that patents that encroach on Indian traditional knowledge are refused in foreign countries, they’ve been far less astute when it comes to patents filed in their own country. This has had the result that a number of patents that should perhaps have been refused for encroaching on Indian traditional knowledge have been granted in India over the past few years. This despite the fact that India has a searchable database known as the Traditional Knowledge Digital  Library (TKDL). The article claimed that Indian patents filed by multinationals like Abbot Labs, Novartis, AstraZeneca, Pfizer, Bayer and Proctor & Gamble were wrongly granted. It also gave a particular example of a 2007 patent filed by an Indian company called Avesthagen for a composition of jamun and cinnamon extracts, which the Indian government had in fact, through its TKDL Office,   persuaded the European Patent Office to refuse.  Double standards or an embarrassing oversight – it’s not really clear?  

So how is this relevant to us? Well, traditional knowledge is a controversial topic in South Africa and it’s been on the agenda for quite some time now - the latest state of play is that the legislation that makes provision for the protection of traditional knowledge in South Africa has been approved by Parliament, and simply awaits the President’s signature.  The legislation makes significant amendments to the Copyright Act, the Performers’ Protection Act, the Trade Marks, and the Designs Acts, but it doesn’t do anything to the Patents Act. Yet, somewhat confusingly, it does make provision for a database of ‘traditional intellectual property’, and this is said to cover, inter alia, ‘traditional innovations.’ 

So what, if any, links are there between patents and traditional knowledge in South Africa? Well, irrespective of whether or not any innovations are ever recorded in the database of traditional intellectual property, it is  clear that traditional knowledge can always be relevant to patents. That’s because novelty and inventiveness lie at the heart of patent law - in order for an invention to be patentable it must be new and it must involve an inventive step. According to the Patents Act, an invention will be new if it did not form part of the state of the art at the time of the application - the state of the art is defined as comprising all matter that has been made available to the public by way of written or oral description, or by use or any other ways.   And it will involve an inventive step if it is not obvious to those skilled in that field.

So it’s quite clear that if a patent comprises little more than traditional knowledge it cannot pass the tests of novelty and inventiveness.  In this regard, it’s important to understand that South African patent law differs from Indian patent law, in that in South Africa there is no scope for pre-grant objections – the South African patent system is known as a ‘deposit’ system which means that, provided all the formalities are complied with, a patent application will be granted, irrespective of whether or not the invention is new or inventive. A patent can, however, be revoked after grant by a third party on the basis that it wasn't new or inventive.

On top of that, certain amendments that relate to both traditional knowledge and biodiversity were made to the Patents Act in 2005.  As a result of these amendments, which only came into force in 2007, every applicant for a South African patent must now lodge a declaration stating whether or not the invention is based on, or derived from, any traditional knowledge or any indigenous (South African) biological or genetic resource.  If it is, the applicant   must submit proof of title or authority to make use of that knowledge or resource. In the case of traditional knowledge, the applicant must also state whether the patent is co-owned by the owner of the traditional knowledge.  If the applicant makes a false statement, the patent can be revoked. On top of that, the South African Biodiversity Act 2004 provides that where a patent is based on, or derived from, traditional knowledge or an indigenous biological or genetic resource, compensation must be paid to the owner of the traditional knowledge, or the person or community giving access to the indigenous biological or genetic resource.

So in South Africa the links between patents and traditional knowledge are quite significant. In summary – if a patent in South Africa comprises little more than traditional knowledge it may be open to cancellation on the basis of lack of novelty or inventiveness.  Even if it comprises more than traditional knowledge, but is still based on or derived from that knowledge (or an indigenous biological or genetic resource), the patent will be open to attack if the inventor does not disclose the link.  If the patentee does make the disclosure as required,  it will need to pay compensation  to the  owner of the traditional knowledge (or the person or community giving access to the resource).   Whether or not the South African administrative body that will be established by the traditional knowledge legislation will follow its Indian counterpart and take active steps to prevent patents being registered in foreign countries on the basis of South African traditional knowledge, remains to be seen.