Faced with the question of the benefit of publicly funded innovation, the consensus seemed to be that account must be taken of the interests of the public.

Speaking at the Licensing Executives Society International conference in Sandton on Tuesday, Innovation Fund acting executive director and Technology Innovation Agency executive committee member McLean Sibanda, explained that the level of poverty in South Africa must be kept in mind when publicly funded research was considered.

Citing a 2003 report, Sibanda said that 40% of South Africans live in poverty. Research and development (R&D) should address the needs of the indigent, he said, in particular, housing, health and family issues.

The country needed a world-class infrastructure for R&D, said Sibanda, who led the public consultation process on behalf of the Department of Science and Technology, for the development of the South African Policy Framework for Intellectual Property Rights from Publicly Financed Research and Development Strategy in 2002.

South Africa should balance the two challenges of innovating for the public good and expanding the country's R&D capacity, he said, as intellectual property could be used as an "instrument for wealth creation".

When it came to the country's largest concentration of knowledge, Sibanda said that less than 5% of patents originating in South Africa stemmed from universities and public research institutions. R&D was currently working on low economic returns, he said.

Outlining the regulations of the Intellectual Property Rights from Publicly Financed Research and Development Act (Act 51 of 2008), which are due to be released next month, Sibanda said that the objective of the new legislation was to identify, manage and commercialise intellectual property arising from public funding, for the benefit of the public.

Because of the public financing of such innovations, the government had some rights to the intellectual property. Sibanda assured international delegates that this was "not about the money" and that government was not advocating patenting per se. Intellectual property was viewed in a holistic manner, he explained, focusing on accountability for public funding, encouraging knowledge management, ensuring that outputs found the marketplace in order to benefit South Africa's development, and contributing to the country's developmental challenges.

THE ACT

Speaking on the perspective of South African tertiary and publicly funded R&D institutions, Medical Research Council intellectual property and business development manager Michelle Mulder outlined intellectual property management and technology transfer in South Africa.

While patenting by publicly funded institutions was increasing, Mulder said that there were still low levels of income stemming from the commercialisation of intellectual property, which was discouraging.

Mulder outlined the positive aspects of the Act, which, she said, indicated recognition of the clear need to increase the patenting and commercialisation of intellectual property. The Act also encouraged compliance with black economic empowerment and small, medium-sized and microenterprise schemes, as well as the beneficiation of intellectual property for South Africa.

However, Mulder said that the Act posed certain challenges to tertiary and publicly funded R&D institutions. It had the potential to discourage the funding of R&D by foreign and industry funders, she said, which are the greatest funders of research. Academics also tend to defend their autonomy, she said, citing Oxford University's approach, that "innovation cannot be forced". With government having rights to intellectual property owing to public financing, licensees may also be discouraged by the onerous conditions set by the Act, for example: government walk-in rights, preference for nonexclusive licensing and the right of the National Intellectual Property Management Office to intervene.

Overall, Mulder said that the impact of the Act on the publicly funded R&D sector would likely be both positive and negative.

INDUSTRY PERSPECTIVE

Sasol intellectual property legal adviser Morne Barradas summarised the industry perspective on the new legislation. The mechanism of exclusive or nonexclusive licences for intellectual property ownership, allowed for the strategic use of intellectual property, she said, while the option for co owned intellectual property resulted in a problem of jurisdiction.

Barradas added that the mechanism offering full ownership of intellectual property, if a project was fully funded by a company, was viewed as the most positive aspect of the Act.