In July 2016, the South African Department of Trade and Industry (the “DTI”) published, and invited public comment on, its Intellectual Property Consultative Framework (the “IPCF”).

The IPCF reflects the DTI’s views on South Africa’s IP policy position in the form of a consultative instrument. The purpose of the IPCF is to “facilitate continuous engagement with government partners and society at large” in order to formulate South Africa’s IP policy in a coordinated and collaborative way.

The IPCF is based on the premise that South Africa’s IP policy should advance certain objectives, including:

· engendering the ethos of the Constitution

· aligning with the country’s National Development Plan (which calls for greater emphasis on innovation, improved productivity, more intensive pursuit of a knowledge economy and better exploitation of comparative and competitive advantages) and industrial policy

· balancing the interests of creators and users of IP

· balancing the interests of the public and industry development by stimulating innovation

· promoting public health

The IPCF identifies certain areas of IP that require immediate action, medium-term action or monitoring and evaluation.

The IPCF notes that the pharmaceuticals industry is one of the priority sectors identified by the DTI’s Industrial Policy Action Plan and identifies the following areas as requiring immediate action:

· the adoption of a substantive search and examination system for pharmaceutical patent applications and affording third parties an opportunity to “bring their resources to bear and present relevant information to the patent examiner in [the] opposition process” (which, although not entirely clear, seems to suggest that third parties should be entitled to intervene in the examination process between the patent applicant and the patent examiner, or post-examination during an opposition period).

· the development of an appropriate approach to patentability criteria to address public health concerns, to the extent permissible by the international Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).

· consideration of the use of patent disclosure requirements in a way that uses the flexibility of TRIPS. In this regard, specific reference is made to article 29 of TRIPS, which provides that “Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application”.

· parallel importation, particularly in the context of access to medicines. It is suggested that explicitly incorporating total international exhaustion would clarify matters of interpretation of section 15C of the Medicines and Related Substances Act (the “Medicines Act”). This Act, which is administered by the Department of Health, governs parallel importation of medicine into South Africa under section 15C.

· investigating the effectiveness of the early working/Bolar exception in the 2002 amendment to the Patents Act, and further limited exceptions to patent rights, to the extent permitted by article 39 of TRIPS.

· investigating “a mix of policy options” where voluntary licences and mechanisms of patent exploitation prove inadequate.

· drafting proposals around compulsory licensing and the use of patented subject matter by the South African government, including considering methods of streamlining compulsory licensing processes, exploring guidelines for determining adequate remuneration for patent holders, and reviewing the requirement of prior negotiation with patent holders in respect of government use of patented subject matter.

· developing guidelines on the interface between IP and competition law and, in addressing such interface, having regard to the scope under the TRIPS agreement to permit members to use competition policy as an instrument to facilitate access to medicines.

· the consideration of the Lisbon System for the International Registration of Appellations of Origin by an inter-ministerial committee on IP, given that the current position, under which South Africa does not have a statute specifically dealing with geographical indications (“GIs”) or a special registration system for GIs in respects of kinds of products, may change.

The IPCF identifies, as medium-term priorities, the following substantive issues as working areas for an inter-ministerial committee to develop together with the World Intellectual Property Organization or other expert institutions:

· IP rights (“IPRs”) in agriculture

· IPRs in biotechnology/genetic resources

· IPRs and the environment/climate change/green technologies

· IPRs and the informal sector

· branding of South African goods and services (collective marks, certification marks and GIs)

· safeguarding South African emblems and national icons

· IPRs and government

· commercialisation of IPRs

· IPR localisation and beneficiation

· policy making and the international arena

· IPR awareness and capacity building

· enforcement

Legislative initiatives that started or were concluded before the formulation of the country’s National IP Policy (indigenous knowledge and copyright-related issues being the most pertinent) are not identified in the IPCF as immediate or medium-term priority issues and it is proposed that these initiatives be subject to merely monitoring and evaluation. These legislative initiatives have been the subject of particularly strong criticism, notwithstanding that significant resources have already been committed to these initiatives. This criticism includes that:

· such legislative initiatives should align with South Africa’s broader IP policy implicitly reflected in the IPCF; and

· the Draft National Policy on IP, the Intellectual Property Laws Amendment Act and the Copyright Amendment Bill should be carefully reconsidered under the proposed new policy implicitly reflected in the IPCF.

The deadline for submitting comments on the IPCF expired on 14 October 2014. ENSafrica, independently, as well as under the banner of the Licensing Executives Society of South Africa, recently submitted comments on the IPCF to the DTI and continues to monitor the outcomes of the submissions made and the development of the formulation of South Africa’s IP policy.

Vanessa van Coppenhagen

corporate commercial director

[email protected]

cell: +27 83 411 3558