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TRADE AND INDUSTRY PORTFOLIO COMMITTEE Mr B Martins (ANC)
26 August 2005
PATENTS LAW AMENDMENT BILL: FINALISATION
TRADE AND INDUSTRY PORTFOLIO COMMITTEE
Mr B Martins (ANC)
Patents Amendment Bill [B17-2005]
Proposed amendments to the Patents Amendment Bill
Department’s response to submissions
The Department of Trade and Industry responded to submissions made on the Bill. It agreed with most of the submissions. However, it could not accommodate some of the proposals made by the Treatment Action Campaign (TAC) and the Centre for Applied Legal (CALS) studies because they were outside the scope of the Bill. Members raised questions on how the Department envisaged to protect African items such as food recipes that were being exploited for the benefit of certain people and not African communities. The Committee adopted the Bill with amendments.
The Department responded to submissions made on the Bill. It was represented by Mr M Netshitenzhe (Director: Consumer and Corporate Regulation Division) and Mr J Strydom (Departmental legal drafter).
Mr Netshitenzhe presented the Department’s response (see document). The Department had accepted the submissions by Spoor and Fisher and the South African Institute of Property Law in respect of the granting of the lodging date. The Department had been too harsh in this regard. The denial of a lodging date would prejudice the rights of the applicant as South Africa followed the "first to file" principle.
He said that it was true that the Bill dealt with "indigenous" resources of South Africa. There was a need to "indigenise" the words "biological" and "genetic" resources. The word "indigenous" should be inserted before biological resources. The Registrar would allocate a date of lodgement to the applicant but would not "process or accept" the application or "grant" the patent if the requirements were not furnished to the Registrar.
The Department also accepted the first part of the submission by the TAC and CALS. The institutions had also submitted that there was a need to adopt a pre-grant system. They relied on India in making this submission. In South Africa a patent was not enforceable for a period of nine months after it had been granted. This was to allow anyone to oppose the patent. An amendment would be drafted to include the system but would not specifically refer to a pre-grant system.
Part Two of the submission raised very important issues. Most of the issues came from the Doha declaration. Access to medicines and drugs was the development agenda of the conference. The Bill did not cover this issue. The Department could not effect amendments because some of the issues involved still had to be finalised at an international level. There were issues of compulsory licensing and competition. Preliminary consultations with the Department of Health had been held at the level of officials. There was a need for the Directors General and Ministers of the two Departments to be properly briefed and apply their minds to the issues. It might be helpful if the Committee could request the two Departments to speedily apply their minds to the issues. The issues raised in this part should be separated from the Bill. This was not an attempt to delay access to medicines.
He said that Mr B J Erasmus had submitted that the Department should provide incentives for patenting. The Department provided an incentive for registering intellectual property and the Department of Science and Technology (DST) also assisted inventors to register their patents. It was conceded that the two incentives of the DTI and DST were not helpful to a person such as the commentator. The incentive offered by the Department of Trade and Industry required inventors to use their own funds to register their patents all over the world and later claim 90% of the expenses. This might not be helpful to persons without money. The DST assistance emphasised that people should be attached to research and development institutions. This might not be helpful to the commentator if he was not attached to the relevant institution.
Mr L Labuschagne (DA) said that he had read that the number of new patents registered in South Africa in the last few years had seen a negligible increase as compared to 50 years ago whereas some countries had doubled their numbers. It was absolutely essential for the Department to investigate assisting budding inventors. The Committee should make recommendations that some assistance should be provided. There was a need to encourage invention and innovation. The incorporation of issues raised by the second part of the submission by Treatment Action Campaign and CALS would require re-writing the Bill and another round of public comment. He said that the issues warranted serious consideration but should not be considered under this Bill.
Mr S Rasmeni (ANC) asked if assistance was only given to patent applicants. Was there any consideration for giving assistance to a community from where the indigenous knowledge was derived? Some communities might have problems understanding issues around patents.
Mr Netshitenzhe replied that there was a need for some support system. There was the Innovation Fund but the problem was that it did not help people such as Mr Erasmus. The Department was ready to take instructions from the Committee on how to address the problem. The government was worried that people received grants for research purposes, discovered patents and then sold them to foreign jurisdictions. They did not plough back to the taxpayers that were funding them. The Department was worried about the amount of knowledge going outside the country. Some of the patents, if used, could give South Africa a competitive edge over other countries. There was a need to ensure that the government controlled all patents discovered by universities with its assistance. There might be a need to ask the community if they wanted to register patents with modern researchers. One would also have to deal with the issue of incentives.
Ms B Ntuli (ANC) said the Bill contained no reference to cultural things. There was a television advert advertising beer. The following words had been used in the advert: "bayethe wena wendlovu". The advertiser was almost sued by King Goodwill Zwelithini for using these words. Was there a way of protecting such words in the Bill? Were things like this automatically protected?
Mr Netshitenzhe replied that the member had raised a good point. When dealing with traditional or indigenous issues, one could not simply classify items under patents or trade marks because some of them straddled the divide. The Department of Science and Technology had approached the Cabinet requesting the adoption of the Indigenous Knowledge System (IKS) policy and the request was granted. The policy run across a lot of issues, including culture. The Department would introduce a policy on intellectual property and traditional knowledge. The question was how the intellectual property law protected traditional knowledge, including cultural issues and geographic locations. The Bill was only concerned with patents. The life span of a copyright was 50 years and could not protect cultural things that were perpetual.
The Chairperson said that members had made valid comments. It was the Committee’s responsibility to encourage people to be innovative. The Committee was also responsible for assisting people in patenting their inventions. It would be preferable for the Department to notify the committee of upcoming legislation far in advance so that it could make some input from the earliest stages. The ancillary issues raised by the TAC should not delay the Committee in passing this Bill. He hoped that the Department would have the final draft of the Bill ready when it appeared before the Committee again. He asked if there was any mechanism to evaluate if this legislation would have the desired effect. Was there an intention of building in such a mechanism in the Bill?
Mr Netshitenzhe replied that the Department had a division that dealt with impact assessment. He welcomed any suggestions on how often the division should conduct impact assessment.
Ms Ntuli said that the Bill was trying to correct the wrongs of the past in a piecemeal fashion. This was cause for concern. Many people were making a lot of money out of what "our grandparents used to cook for us". For instance, there was mageu, a very old recipe from which some people were benefiting. There was also mqombothi which was being distorted and made in a different way. What was the Department doing about this? How was it going to correct this because many people were getting rich out of the knowledge of our people? How long would it take to correct this? She requested the Department seriously look at this and come up with a way of addressing the issue.
Mr Labuschagne proposed that the Committee should finalise the Bill since the Department had addressed the submissions and drafted the proposed amendments.
The Chairperson replied that the Committee did not have a final draft of the Bill. It would also depend on whether the Department could proceed on the basis on the amendments it had drafted and whether there were enough members to form a quorum.
Mr Strydom said that the Department was ready to proceed. Most of the submissions made were covered within the proposed amendments.
Certain DA members of Parliament had to be co-opted so that there could be a quorum.
Voting on the Bill
The Chairperson read the motion of the desirability of the Bill and the Committee’s Report on the Bill. The Committee unanimously agreed to the motion of desirability and reported the Bill with amendments.
The meeting was adjourned.