RSA's Draft National IP Policy - Moubray's notes

With only 6 days to go before the deadline to comment on RSA's draft national IP Policy, Hugh Moubray of Spoor & Fisher has shared his thoughts on the interface between innovation and patents in South Africa. His article The Importance of innovation and the patent system in South Africa can be located here. What Afro Leo likes about Hugh's article is that it is not simply a critique of the draft policy, it proposes a solution and, in doing so, articulates a basis and reasoning for his approach.

He addresses and provides cogent arguments for the patent system as a means of "leveraging the power of self interest [which] leads to innovation, growth and prosperity", why RSA's current system is more than just a deposit system, the virtues of the system as it works in RSA, why it does not produce "weak" patents and why so-called "evergreening", in principle, is not necessarily bad though he explains how the effect of unwarranted "evergreening" could be limited so that they are not a barrier to generics, and why "evergreening" would not be eliminated, even with an advanced merit based examination system. In doing so, he explains how our current law caters for public concerns in requests for interim relief.

Hugh Moubray

He believes that if the patent system is to be improved, the "focus should be on improving the patent litigation system" and to that end he supports a specialist patent court which he feels is supported by the existing Patents Act. He also feels that the "most encouraging" aspect of the draft IP Policy is on the topic of IP enforcement.

".....there are therefore three factors which, in my view, contribute to

South Africa having a prosecution system which has the best of a deposit based

Examination system and a merit based examination system. As mentioned these

three factors are the legal requirement that a patentee is not entitled to any

relief on an invalid or partially invalid patent, the practice of amending patents,

and the examination of international patent applications"

".....I believe that a merit based patent examination system would be

very costly and would be likely to lead to significant delays in the grant of

patents. In addition resources would be wasted examining patent applications

which have no commercial value. On the other hand, a properly functioning

specialist patent court would provide a very focused and effective approach to

the issue of patent validity."

For previous notes on the draft IP Policy see:

·         Harms’ notes

·         Patent notes

·         Copyright notes

·         UCT’s notes

·         Trade Mark notes