Traditional Knowledge and Genetic and Biological Resources Get a Patent Boost
A Bill has recently been published which seeks to ensure that indigenous peoples are adequately compensated when an invention which is sought to be patented in South Africa uses traditional knowledge or genetic or biological resources which can properly be said to be attributable to those peoples.
In terms of this Bill, Section 25, the Section of the Patents Act which defines patentable inventions, is to be amended to introduce provisions obliging applicants for patents to disclose in their patent applications "the origin of the biological or genetic material used in the invention". Further, the proposed amendment will empower the Registrar of Patents to refuse a patent application "for any element of indigenous knowledge/heritage without adequate documentation of the prior and informed consent of traditional knowledge owners or holders of the sharing of ownership, control, use and benefits".
Provision is made for the revocation of a patent where a patent owner fails to meet the obligations set out above.
Whilst the objectives of the Bill are consistent with the National Environmental Management Act, the provisions to achieve this are flawed in many respects. For example, the Bill penalizes "non-disclosure and wrongful non-disclosure" of prior knowledge and traditional knowledge, without indicating or defining the difference between these two types of non-disclosure. Further, there is no definition of the meaning of "prior knowledge" which, if there is a failure to disclose, can lead to the rejection of a patent application.
Substantial revision of the proposed amendment to Section 25 will be required to achieve the objectives of the Bill. A copy of the Bill in PDF format is downloadable.
Spoor & Fisher