Intellectual Property Rights Act sets out new regime for R&D using government funds

A new law, the Intellectual Property Rights Act, has changed the regime governing intellectual property rights related to state-funded research and development work.
Published in the Government Gazette on 22 December 2008, the Intellectual Property Rights from Publicly Financed Research (IPR) Act has been developed to ensure the effective use of intellectual property resulting from publicly financed research and development – which the Department of Science and Technology says has “been a grey area for far too long.”
The specific object of the legislation is that intellectual property emanating from publicly financed research and development should be commercialised for the benefit of all South Africans, and be protected from private appropriation.
For this reason, the law provides for an enabling environment for intellectual property (IP) creation, protection, management and commercialisation.
DST spokesman Nhlanhla Nyide says the country`s knowledge-generating institutions will now have clear guidance on how best to manage IP, as well as how to ensure that publicly financed IP gets out into the market place and is used.
“Key to this, the law is aimed at facilitating the creation of new knowledge that is derived from public funding and to secure this knowledge in the form of IP rights, including, but not limited to patents, for IP that could have economic and social benefits,” he says.
Support will be provided by the National Intellectual Property Management Office and the Intellectual Property Fund, as well as offices of technology transfer at the institutions.
Closely linked to the IPR Act is the Technology Innovation Agency Act, which provides for the establishment of a public entity to finance individuals and entities commercialising their technological innovations and inventions.
The DST hopes to establish the Agency this year in order to integrate the management of disparate technological innovation initiatives that are still at a developmental stage.
All these initiatives are part of the Department’s larger Ten-Year Innovation Plan, aimed at driving South Africa towards a knowledge-based economy in which the production and dissemination of knowledge leads to economic benefits.
ITWeb reports that the DST`s chief R&D agency, the Council for Scientific and Industrial Research (CSIR) that also works in the defence and security space supports the objectives of the Act. But at the same time, it is pointing out the complexities of promoting effective technology transfer.
“We hope that implementation of the legislation will see the right balance struck between stimulating the desired behaviour, while avoiding over-regulation,” says CSIR senior intellectual property manager Rosemary Wolson.

She adds that technology transfer is just one way of strengthening linkages in the National System of Innovation, the network of players in a country interacting to constitute the country’s innovation system.

Wolson says the impact of the law will be maximised if other elements of the system are simultaneously addressed, in conjunction with partners in the public and private sectors, academia and civil society.

Unintended consequences

Others, including Shuttleworth Foundation intellectual property fellow Andrew Rens, caution that the Bill has a downside.

Rens says the law requires inventors working within the public sector to hand over new inventions to an incentive officer, an example being a lecturer who is obliged to patent the invention or hand it over to a government official who will then patent the invention.
“The impact of this law is that there is now a barrier to innovation.” He notes that by moving away from the open sharing of inventions and information, more people stand to lose out than gain from the system.

Rens notes the Act works on the false premise that patenting leads to profit. He says other countries working on a similar system of IP rights have shown this to be not true. “SA also has no patent examination system where previous patents are checked against each other. There is no assessment which is done to see whether the idea has any merit or not,” adds Rens.

The Bill will have wide-ranging consequences for the South African research community, he notes, saying the country could see a decline in research co-operation from international consortia with universities, a decline in philanthropic funding and a move away from open access.
“This is not a solution. Do we want to see research which benefits the ordinary South African, or do we want to contribute to jobless growth? The solutions are in open access and increased access to venture capital funding for companies,” states Rens.