South Africa is a biodiversity hotspot hosting possibly as
many as 1 million species, many endemic to the region. The
country is also extremely culturally diverse. Our indigenous
communities have over the generations often adapted in harsh
conditions. These communities acquire a vast amount of
biological knowledge with regard to their habitats. This, in
turn, makes South Africa a target region for
There has been an overwhelming surge in the development of
technologies related to applied biology. Those industries that
use biological resources utilise the process of bioprospecting
to acquire new raw materials used to develop drugs, treatments
and super-crops. Bioprospectors harness the knowledge of
indigenous communities, thus finding the biological raw
materials more efficiently. Although indigenous communities
contribute significantly, in most cases their contribution is
not acknowledged nor adequately compensated for.
Large corporations have access to funds used to protect
their biological inventions with intellectual property
protection as the primary vehicle.
The international community has recognised the need for each
state to protect its biological and cultural diversity. The
1993 Convention on Biological Diversity verifies this
commitment. Since its inception it has been ratified by 178
countries including South Africa. Its three main objectives are
a) the conservation of biological diversity; b) the sustainable
use of its components and c) the fair and equitable sharing of
benefits arising out of the utilization of genetic
Each ratifying State has to make a concerted effort to
protect its biological and cultural diversity. South Africa has
come a long way. We have enacted two primary instruments: the
Patent Amendment Act and the South African National
Environmental Management: Biodiversity Act.
The Patent Amendment Act has not yet come into force. It is
a defensive protection mechanism primarily aimed to protect our
biodiversity and the rights of the indigenous communities. The
Act puts in place certain additional requirements when lodging
a biological patent, such as the disclosure of the origin of
the invention and whether the invention is based on knowledge
acquired from an indigenous biological resource or traditional
knowledge. If the invention is derived from such information,
the registrar will require proof of the applicants' title
or authority to make use of such indigenous biological resource
or the traditional knowledge. The Act further provides for a
special ground of revocation of a patent if a material false
statement or representation was knowingly made by the
This Act will make an enormous leap just by acknowledging
the value of our biological and cultural diversity. But
implementation will not be easy. Most communities do not
realise the value of such information or their rights. A
further obstacle is that this Act is only applicable to patents
in South Africa and does not account for the possible
exportation of this knowledge abroad and patenting the
biological inventions there, where the market for most of the
products far outweighs that in South Africa.
In contrast, the main purpose of the Biodiversity Act is the
protection of our biological heritage, centered on a
community-based approach that strives towards a system of
equity. It regulates bioprospecting and exporting of indigenous
biological resources to provide for the fair and equitable
sharing amongst stakeholders.
The party undertaking bioprospecting must obtain a permit
from the relevant issuing authority. The applicant must
disclose all the information concerning the relevant
bioprospecting including the indigenous biological resource
that will be used. A permit is also required to export any
indigenous biological resource for the purpose of
bioprospecting or any other kind of research. The Biodiversity
Act also provides strict guidelines with regard to
Implementation of the Biodiversity Act will be challenging.
The regulations drafted will hopefully propose innovative
methods of streamlining a permiting scheme. Nonetheless it will
be an enormous task to manage and track all the new
bioprospecting activities in South Africa. The permiting scheme
will hinge on the issuing authority's capacity to screen
all applications for bioprospecting thoroughly and South
African administrators are under huge resource constraints as
While both these pieces of legislation go a long way to
protect our biological cultural diversity, only time will tell
whether the mechanisms that have been put in place are
practical or sufficient.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It has always been the practice of the Industrial Property Institute of Mozambique to prohibit the refiling of trade marks that have been finally refused, which has posed a serious obstacle to trade mark applicants...
A recent Australian decision on keyword usage of a registered trade mark is in line with decisions in many other countries, including South Africa.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).