• There are patents which emanate from genetic and biological resources.

• South Africans who may be classified" as traditional /indigenous peoples hold certain knowledge which may lead to patents inventions.

• As for now there is hardly any legal protection of this state of affairs.

• Department of Environmental Affairs and Tourism (DEAT) administers the Biodiversity Act which deals with protection of genetic and biological resources (Chapter 6).

• There is a need to use the patent system to protect traditional knowledge associated with patent invention (where applicable).

• Cabinet has approved a Policy on Indigenous Knowledge Systems (IKS) and this Bill also talk to this Policy.

• The Conference of the Parties requested the World Trade organisation (WTO) and the World Intellectual Property organisation (WIPO) to protect and appreciate traditional knowledge involved in patent inventions. The two organisations are still debating this request. Developing Countries are of the view that there should be nationally and internationally binding instruments (laws and treaties), but developed countries are not in favour of this view.

• Thirteen developing countries have somewhat legislated for protection of TK using patent laws.

• Some Regional arrangements, e.g. the Andes Countries are starting to legislate for these issues at a regional level.

B. Discussion

• Misappropriation of genetic/biological approved.

• Bio-piracy will be curbed if this Bill is approved.

• The following should take place if the Act is to achieve its goals:

• There must be a disclosure of the origin of genetic resource

• There must be a disclosure (GR).

• There must be prior consent of indigenous peoples.

• There must be a co-ownership of patents by the parties involved

• There must be benefit-sharing agreements.

• Co-ordination between DEAT and the registrar of patents is a must if the Act is to be enforced effectively.

• Regulations of the Biodiversity Act and Patents Act need to talk to each other.

C. What the Bill seeks to achieve:

• Empower TK holders.

• Fair trade and development.

• Technology transfer.

• Protection individual/collective nature of TK.

D. Which economic imperatives does the Bill seek to address?

• Economic empowerment.

• Fair trade and development.

• Interfacing the first and second economies.

• Competitiveness of South African 1K holders.

• Economic growth.

Will the Bill (Act) be enforceable nationally, regionally and internationally?

• Nationally yes, subject to co-ordination by government departments.

• Regionally, South Africa needs to influence other countries in the region to legislate accordingly. There should also be regional arrangement (e.g. uniform application of the African Model Legislation and the Andes Countries' approach).

• Internationally, member states of WIPO are formulating international instruments which may be binding. The WTO is also discussing this issue. There is no need to wait for the international community to conclude in this regard.

F. Conclusion

• The Bill will address unfairness in the trading systems and will empower TK holders to determine their economic destination. The Bill enshrines the principles enshrined in the Biodiversity Act, IKS Policy of South Africa, Draft Policy on the Interface of Intellectual Property System and IKS, African Position at WIPO and the WTQ, CBD-Conference of the Parties, African Model Legislation and the Andes Countries.

• Protection of 1K can also be achieved by applying the principles of trade secret, but this is not the purpose of the Bill.

• South Africa is one of the richest countries in genetic resources in the world and it should legislate against bio-piracy/misappropriation and empower its peoples without delay.

• Protection of TK can also be achieved by applying the principles of trade secret, but this is not the purpose of the Bill.

• South Africa is one of the richest countries in genetic resources in the world and it should legislate against bio-piracy/misappropriation and empower its peoples without delay.