Thursday 28 February 2013

Darren Olivier

Africa IP Forum 2013 - Reflections - David Cochrane

This is a first of a series of guest posts on the Africa IP Forum. This one is from the pen of experienced patent attorney, David Cochrane of Spoor & Fisher

"The Forum was very well organised and the speakers were excellent.  As a practitioner I gained valuable insight into the difficulties facing the African continent when it comes to IP related issues, and also possible solutions.

As the meeting started, there was a demonstration by members of the Treatment Action Campaign (TAC).  Initially I felt that it was not correct to interrupt a meeting of this nature, but when I saw people taking part in the demonstration who were clearly suffering and also the importance of their message, I understood it. Mrs Zodwa Ntuli (the Deputy Director General for corporate & consumer regulation at the DTI) was very gracious and allowed a speaker from the TAC to take the microphone. The TAC called on the Minister of Trade and Industry (Dr Rob Davies) to publish the long-awaited IP policy, and called for South Africa to amend its patent laws to change from a depository system to an examination system, to allow for pre and post grant opposition of patents, and to provide administrative procedures for compulsory licensing. The TAC’s stance is that it is important that the rights of the patent holder be balanced with the right to health, and I am sure that no-one can argue with this.  These issues were dealt with in detail at the Forum and I hope that this aim can be achieved.

Dr Davies gave a very interesting talk on where South Africa is heading on the IP Front.  Dr Davies said that the South African Government is looking to adaptation and continuous development (not necessarily ground breaking developments), to improve the industrial development in South Africa.  Dr Davies said that the Government respects IP protection and seeks to strike a balance between IP protection and public policy, especially public health.  South Africa is signatory to International Agreements such as the TRIPS Agreement and the Government will be looking to the flexibilities which are available in the TRIPS Agreement to strike this balance.  Dr Davies also mentioned the stark distinction between generic medicines and counterfeit goods, and that the Government will do everything possible against the scourge of counterfeiting.  Dr Davies also mentioned that (in my view unfortunately) the Government is still looking to amend the IP laws to protect traditional knowledge instead of setting up a sui generis system for protection (as has been suggested by leading IP attorneys in South Africa). 

I attended a session on the benefits of a substantive examination of patents versus the depository system (currently used by South Africa).  Excellent presentations by Mr Kiige from ARIPO, a legal representative from the Kenyan Industrial Property Institute (KIPI) who discussed the patent examinations which are conducted by these bodies; and by Ms Lena Menhengany from Medicines Sans Frontiers who discussed the situation in India and the need for strong and effective patent examination.  Mr Danie Dohmen From Adams & Adams gave a very good talk on the depository system which has been used successfully in South Africa for so many years. The overall feeling from the discussion is that an examination system is better.  The main issue with an examination system however is that it must be implemented properly.  South Africa will need to find science graduates and train them to be effective examiners.  At the meeting it was mentioned that Kenya currently has only 11 patent examiners, and ARIPO even fewer.  South Africa has a shortage of science graduates and I think that finding and training patent examiners will be the greatest challenge to implementing an examination system in South Africa.  On the positive side, if the Government provides enough support and is able to increase the number of science graduates, an examining patent office could provide employment for these graduates and develop these skills in South Africa."

Darren Olivier

Darren Olivier

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1 March 2013 at 12:37 delete

Thanks for this succint oveview, David. I share your sentiments about the IP protection of traditional knowledge. However, it seems that the DST is pushing the sui generis protection aspect to complement the DTI's IP protection. See