Protection for Indigenous Biological and Genetic Resources and Traditional Knowledge in Patent Bill

In March 2004 we reported the publication of a Bill intended to ensure that indigenous peoples are adequately compensated when an invention which is sought to be patented in South Africa uses traditional knowledge or genetic or biological resources which can properly be said to be attributable to those peoples. We indicated that the provisions of this Bill were flawed in many respects and believed that substantial revision would be required.

This earlier Bill has been replaced by a recently published Bill called the Patents Amendment Bill.

The Patents Amendment Bill requires that every applicant who lodges an application for a patent accompanied by a complete specification must lodge with the Registrar of Patents a statement in the prescribed form stating whether or not the invention is:

directly derived from an indigenous biological resource or a genetic resource, and

based on or derived from traditional knowledge or use.

These provisions would indicate that every applicant is required to lodge a statement of this type irrespective of the nature of the invention sought to be protected. Some doubt is cast on this interpretation by subsection (b) which provides that applications for inventions which are directly derived from an indigenous biological resource or genetic resource or based on or derived from traditional knowledge or use will not be given a lodging date until the required statement has been lodged. The intention would seem to be to require a statement to be filed only with applications directed to inventions relevant to the specific provisions of this Bill. Further, it is unfair that applications for this type of invention be denied a lodging date until the relevant statement has been filed. The late lodging of other documents is permitted by Patents Act 57 and there seems to be no good reason not to allow the late lodging of this statement as well.

The Registrar is empowered to call upon the applicant to furnish proof in the prescribed manner as to his or her title or authority to make use of the indigenous biological resource or genetic resource or of the traditional knowledge or traditional use if the applicant lodges a statement that acknowledges that the invention is directly derived from an indigenous biological resource or a genetic resource or that the invention is based on or derived from traditional knowledge or use.

The Patents Amendment Bill goes on to provide a ground of revocation of a patent wherein the statement lodged in terms of the provisions of this Bill contains a false statement or representation which is material and which the patentee knew to be false at the time it was made.

As mentioned above, it is believed that amendments to the provisions of this Bill will be necessary before it becomes law.

Click here to download a copy of the Patents Amendment Bill.

Anthony Hooper

Spoor & Fisher

Date published: 2005/06/01
Author: Anthony Hooper

Tags: indigenous biological genetic resources traditional knowledge bill