South Africa is faced with the thorny problem that it harbours a First World/Third World dichotomy within its borders. Pioneering steps are therefore required to protect public health, attract foreign direct investment, encourage domestic innovation and education which in turn boosts national economic growth, and filter the benefits to all levels of South African society.
Professor Anastassios Pouris of the Institute for Technological Innovation, University of Pretoria, speaking at the "Accelerating IP and Innovation" Conference held in September in Cape Town, South Africa, aired the view that the non-examining patents system in operation in South Africa is detrimental to the innovation in the country and consequently to economic growth. Pouris urged government to bring the system up to international standards (examining system; openness etc) as a matter of urgency. James Pooley, Deputy Director General for Innovation and Technology of the World Intellectual Property Organization (WIPO) concurring with Valentin Mir, Director of International affairs for the European Patent Office, however, cautioned that an examining system will be far too onerous for a developing country, like South Africa. The country would typically need about 200 examiners to deal with the projected 10 000 patent filings per year. Considering that highly trained engineers and scientist are recruited as examiners and that these people are prevented from inventing themselves, an examining system would be very costly in terms of human resources. It was suggested that use should rather be made of existing examining authorities to screen patents and that the problem should be addressed in a regional rather than a national forum which allows pooling of resources.
While it is clear that South Africa's patent system has many shortfalls, it remains dubious whether revamping South Africa's patent system to provide for at least some screening of patents, and empowering the Registrar to ensure compliance with the Patents Act, is the answer to the country's innovation and economic woes. As pointed out by Dr Litvack, former Co-Director, The Interventional Cardiology Center, Cedars Sinai Medical Center, Los Angeles; Professor of Cardiology at UCLA School of Medicine, there are broader issues at hand which need to be addressed first.
Dr Litvack believes that strong academic institutions, fostering a culture of developing IP on a world-wide basis and a "can do" attitude and a supportive government are key factors for innovation and economic development. This view was supported by Gordon Myers, Chief Counsel, International Finance Corporation, World Bank, who emphasized that the most binding constraint on improving innovation is the scarce supply of skills. Gordon added that that the interpretation and implementation of new laws and exchange control enforcement may also need to be addressed.
Although it may be desirable to have an optimal functioning patent system, in view of the broader challenges facing South Africa, perhaps now is not the time to debate patent regime change.
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