Dissecting the new IP consultative framework

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08 Nov 2016

On 6 July 2016, the Intellectual Property Consultative Framework was approved by Cabinet following the Draft National Intellectual Property (IP) Policy that was published for comment in 2013. Dr Charleen Rupnarain, Associate at Adams & Adams, delves deeper into what it means for intellectual property in SA.

The framework is the first step in a new process to develop a comprehensive IP policy for South Africa. Feedback from the previous Draft IP Policy focused on a lack of recognition of public comments and the new framework takes cognisance of this and seeks to remedy it by finalising the policy in a co-ordinated approach between both government and society.

The framework sets out that the IP Policy should promote the following objectives:

• Engender the ethos of the Constitution
• Align SA’s IP regime to the National Development Plan and industrial policy
• Develop a co-ordinated intergovernmental approach to IP
• Strike a balance between the creators and users of IP
• Stimulate innovation
• Facilitate developing key industries while balancing public interest
• Adopt a co-ordinated approach to IP in sub-regional, regional and international forums
• Promote public health

The new framework also recognises that there are a number of issues that will be affected. Key issues have been divided into “immediate”, “medium-term” and for “monitoring and evaluation” in order to prioritise urgent issues over ones that may require more in-depth consideration. IP issues surrounding public health (including medicines, vaccines and diagnostics) have been classed as an immediate priority in finalising the new policy, and the following are listed as immediate issues to be dealt with in the new policy:

• Local manufacture and export in line with industrial policy
• Substantive search and examination of patents
• Patent opposition
• Patentability criteria
• Disclosure requirements
• Parallel importation
• Exceptions
• Compulsory licences
• IP and competition law

The framework also provides for the establishment of an Inter-Ministerial Committee (IMC) as an urgent need. Initually, this committee will serve as a consultative forum for formulating the IP Policy. With respect to the immediate concern of substantive search and examination of patents, the first group of twenty patent searchers and examiners has already been appointed and begun the two-year training programme. The goal is that training will be completed by December 2017 and that substantive search and examination will begin in January 2018, following the enactment of the IP Policy.

The CIPC aims to repeat this recruitment process every two years with candidates from technical fields, such as chemistry, biochemistry, biotechnology, electrical engineering, mechanical and mining engineering, pharmaceuticals, and information technology. It’s been proposed that initially substantive examination of patent applications will only be in respect of certain technical fields.

The Department of Trade and Industry provided the deadline of 30 September 2016 for the public to submit comments. See A&A Comments HERE. Following this, there’ll be continuous engagement between government and the public, including round-table discussions and workshops. The goal is that the IP Policy, which will address immediate issues and provide a framework for in-built agenda, will be finalised by March 2017.

Click here for more news on the draft IP Policy.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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