Local law firm Adams & Adams reports that, even though the South African intellectual property (IP) system still faces some challenges, it is regarded as an effective and modern system, which is well positioned and successfully enforced, when compared with other African countries and even developed countries.

Adams & Adams chairperson Dario Tanziani says South Africa’s IP system is well suited to the country’s circumstances and is constantly updated and revised, whereas some other African countries still either have outdated IP laws, which were enacted during their colonial past, or laws that are above their means to administer.

In addition, South Africa has sufficient highly skilled professionals consistently entering the IP market, whereas other African countries face severe skills shortages.

“South Africa’s skilled IP professionals and government’s policymakers work together to keep the country’s IP system in good shape, even compared with those of developed economies such as Europe and the US,” notes Tanziani.

“Some of the best aspects of our IP system are that we have a bench of experienced judges, who have made extensive high-quality rulings in the Court of the Commissioner of Patents, the High Court and the Supreme Court of Appeal, in the past,” he says.

In addition, a unique feature where patents are concerned is that an appeal against a judgment of the Court of the Commissioner of Patents almost always goes straight to the Supreme Court of Appeal, thus reducing the process of obtaining finality in patent matters to just two steps, he explains.

However, there is room for improvement in the IP system, and some provisions, sections and Acts will have to be revised by policy makers.

“Some sections of the Patents Act dealing with the enforcement of partially valid patents, leave too much room for interpretation, and this can unjustifiably reduce the enforceability of patents,” he cautions.

Further, he adds that the common law principles of the calculation of damages are currently applicable to IP disputes, which are governed by statute. “This is archaic and in need of revision, as it is one area where South Africa is out of step with most other jurisdictions.”

Another issue is the effective life of pharmaceutical patents as currently provided for in the Patents Act. “There is no provision for extensions of term of pharmaceutical patents, which have seen their effective life reduced to between eight and ten years by increasingly stringent regulatory environments,” he explains.

While it is a politically sensitive issue, in purely legal terms South Africa is again out of step with countries like the US, Europe and Australia, which allow for limited extensions of term of patents for pharmaceuticals. Access to medicines can still be catered for by compulsory licensing in the right circumstances, even during the extended term, Tanziani says.

Another priority is data package exclusivity.

Confidential and proprietary information relating to clinical trials and toxicity of new drugs and formulations is submitted to the medicines Control Council in support of an application for marketing approval by innovator drug companies.

“As matters currently stand, that information can be used by the authorities to reduce the onus on generic companies wishing to register a generic of that drug. In the draft IP policy currently under consideration, that will not be allowed for traditional medicines for which marketing approval is being sought, and rightly so. However, the policy needs to be consistent,” he says.

IP Policy Revision for Submission in 2012
Further, Tanziani is of the view that it is desirable to have a national IP policy, which informs the IP legislative process of the accession to international IP treaties by South Africa.

“However, policymakers and stakeholders need to reach consensus on what is in the best interests of the country in formulating the IP policy, he says.

This will require further discussion among policy makers to align their own views, and further engagement with stakeholders who are drivers of innovation and invest heavily in research and development.

More discussion forums, such as the IP Indaba, which was held in Pretoria, in August, are needed to ensure effective communication and coordination among policy makers and engagement of stakeholders.

“One has a sense that there is still too much fragmentation among the different parties involved in the revision of the IP policy for the recent Indaba to be definitive. Perhaps a full scale IP convention for a democratic South Africa is required to iron out all the issues properly.

The parties will have to ask themselves what it is that they want to achieve with the policy. If it is economic growth, then the policy must be formulated accordingly,” says Tanziani.

Importance of Intellectual Property Systems
Meanwhile, Tanziani notes fewer locally generated patents are being registered in South Africa, possibly owing to a decline in inventiveness among citizens. This could be as a result of a lack of success with the teaching of science and mathematics in secondary and tertiary institutions.

He explains the classic example of South Africa and South Korea. The two countries were head-to-head in terms of the number of patents that were being registered annually but, in the past few decades, South Africa’s numbers have remained static and, in some cases, have even declined, while South Korea’s numbers have increased exponentially.

“Citizens who are educated, especially in mathematics and science, can contribute to the growth of the economy by inventing new, useful products and technologies that have a high value and can be patented locally and overseas, thus generating revenues from royalties,” says Tanziani.

An increase in the number of patents being registered can indicate a healthy, innovative and inquisitive mindset among citizens, which ultimately makes the country more economically prosperous.

South Africa should not only encourage its citizens to be inquisitive, innovative and creative, but it must also strive to protect the ideas and innovations produced by its people by making funds available to research institutes and universities doing the research and development, he says.

The government should also assist these entities to patent their innovations locally and overseas, he concludes.