Spoor and Fisher and SAIIPL

The DTI

Ref

Proposal

Comment

Action/ way forward

1.

Lodging date must not be denied. This will prejudice the rights of the Applicant as South Africa follows the "first to file principle ("first come first serve").

Agreed and necessary amendments to the Bill effected.

Effected

2.

Agreed and this will create clarity. Necessary amendments already effected

Amendments effected

3.

The word "indigenous" should be inserted before biological resources.

It is true that we are dealing with "indigenous" resources of South Africa and therefore there is a need to "indigenise" the words "biological" and "genetic" resources. The improved draft Bill will take this into account.

Improved version of the Bill incorporating such changes.

4.

Acceptance of an Application" to be denied if requirements are not complied with.

It is admitted that the Registrar will allocate a date of lodgement to the applicant, but the Registrar will not "process" or "accept" the application and must not "grant" the patent if the requirements are not furnished to the Registrar.

-Registrar to confer with DEAT/SANBI to see to it that permit on disclosure of genetic/ biological resources (origin of the resources) is given, co-ownership of the invention/ patents are resolved amongst the bioprospectors and local communities, benefit-sharing arrangements are entered into, and other forms of controls are put in place before grant. Prior Informed Consent of local people must be obtained before their knowledge is used. The Bill must clearly state these issues in the Bill or must clearly state so in the Regulations or a Prescribed form.

TAC AND CENTER FOR APPLIED LEGAL STUDIE S (CALS)

5.

The First Part of the Submission is accepted as a whole. Commentators also request that there is a need to "adopt" a Pre- Grant system.

The DTI accepts the proposals contained in the First Part of the Submission are acceptable. It is a matter of drafting to incorporate the submission. Issues requested under Pre-Grant can be incorporated without calling them "Pre-Grant Procedures".

The revamped Bill has incorporated some of the suggestions, such as "or ought reasonably to have known was...". All the Pre-grant elements may be incorporated into the Bill as mechanisms which will satisfy the Registrar whether the purported patentee has not defrauded any member of the public.

Part Two of the Submission

These issues are very important. Preliminary Consultations with the Department of Health have been held at the level of officials. There is a need for the DGs and Ministers of the two Departments to be properly briefed and apply their minds to these issues. This process may be involved and the Committee may separate these issues and request the two Departments to speedily apply their minds.

Separate the two Processes and the Committee should request the two Departments to look at these issues without delay and a Joint Report should be prepared for the attention of the Committee.

B.J ERASMUS

The Submission requests that the DTI should provide incentives for patenting.

The dti through TISA provides an incentive for registering intellectual property and the Department Science and Technology (DST) also assist inventors to register their patents. It is conceded that the two incentives of the dti and DST are not helpful to a person such as the Commentator. The incentive of the dti requires inventors to use their own funds to register all over the world, and later claim the expenses (90%). For persons without money, this may not be helpful. The DST assistance emphasizes that peoples should be attached to Research and Development Institutions. This may not be helpful to the Commentator.

A different Policy in this regard should be looked at. The dti and DST need to be properly briefed and consider this issue.