There is a worldwide movement afoot to acknowledge and protect indigenous biological and genetic resources as well as traditional knowledge and traditional use of such resources peculiar to the indigenous people of particular countries.

Such resources and knowledge, or the rights thereto, are not protected by existing statute or common law. However, South Africa, like New Zealand and other countries, has taken the first step in providing for such protection in a Patents Amendment Bill, which was published in April 2005.

The Bill introduces three new terms, being ’indigenous biological resource or genetic resource’ (which bears the definitions contained in the National Environment Management: Biodiversity Act of 2004), ’traditional knowledge’ (the knowledge that an indigenous community has regarding the use of an indigenous biological or genetic resource) and ’traditional use’ (the way in which or the purpose for which an indigenous community has used an indigenous biological or genetic resource).

The Bill requires an application for registration of a patent to state whether the invention is directly derived from an indigenous biological resource or a genetic resource and whether it is based on or derived from traditional knowledge or traditional use. Further, the applicant must be prepared to furnish proof of his title or authority to the use thereof.

It would appear that one of the objects of the Bill is to afford the South African Department of Environmental Affairs and Tourism (DEAT) a new role in the process, as they will be required to grant approval prior to the use of biological material in an invention. They will also have the authority to impose conditions such as co-ownership, compensation and benefit sharing before the patent is granted. DEAT will also be able to contest any patent application, even those on an international level, based on biological resource.

Interested parties are currently submitting comments on the proposed Bill, but once passed into law it will benefit practitioners with indigenous, biological and genetic knowledge and it will also crack down on bio-piracy, which encompasses activities such as trafficking in biological materials for patenting without approval from the relevant authority.

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