South Africa: Patents Of Note 1

Last Updated: 16 April 2019
Article by Thomas Gerard Schmidt

Patents of Note is a regular series of articles touching on patents that are of interest to the general public.

Recently, a research team from the University of Illinois announced a major breakthrough in the field of crop science. Their research, published in the well-respected academic journal 'Science', detailed their efforts to fix a problem that has bedevilled many crop plants (including such staples as wheat, rice and soybeans) since they were first bred and cultivated by man.

The problem starts with photosynthesis, which occurs in small subcomponents of plant cells known as chloroplasts. Photosynthesis takes in carbon dioxide and water from the environment and uses light to combine the molecules into simple sugars. In the process, the plant gives off the oxygen that we all need to breathe and makes the food that we all eventually eat (some in the form of meat from animals which eat plants).

In some cases, however, this process can go wrong. Specifically, the enzyme complex which performs one of the prime steps of photosynthesis (which is charmingly acronymed as RuBisCO) will occasionally take in oxygen instead of carbon dioxide. This phenomenon, known as photorespiration, effectively reverses the photosynthetic process – using up energy that could be capturing carbon dioxide and creating sugars. RuBisCO does this about 25% of the time under normal conditions, but gets progressively less selective with increasing temperatures and lower carbon dioxide-to-oxygen ratios.

There is still some scholarly debate as to the function, if any, of this low selectivity. Photorespiration has, for instance, been suggested to be advantageous in conditions where soil nitrates are limited. Regardless, in the context of the farmer's field, some of the most important crop plants known to man effectively spin their wheels when they could instead be doing useful photosynthetic work. In a warming world facing increasing shortages of arable land, it is no stretch to say that photorespiration is now a major limiting factor in food production.

What the researchers did to solve things involved editing a plant of the type that suffers inordinately from this problem with new genes designed to redirect the enzymatic pathways of photosynthesis away from photorespiration and towards productive use of RuBisCO. This yielded an astounding 40% increase in biomass production under ideal conditions, and may well be the key to unlocking similar increases in productivity in the field.

This brings us to the subject of this article: PCT patent application WO 2018/165259. This patent application, along with a corresponding US complete patent application, stems from a founding US provisional patent application filed in March 2017. The applicant (in this case the US government, as represented by the Secretary of Agriculture) also filed a corresponding plant patent in the US, which is a peculiarity of that system that merits further discussion at some other point. The PCT application, like all PCT applications, will not result directly in a patent. Instead, it is going through a non-binding examination over the course of 18 months before ending up in so-called national-phase applications in the various countries and jurisdictions of the world. This invention accordingly has a long way to go before the applicant sees any protectible rights.

One may object at this point that such a momentous discovery should not be limited to benefiting a single party, even (or perhaps especially) if that party is an arm of the government of the largest economy in the world. This is a worthy discussion, and raises the subject of compulsory licences and similar measures whose existence in national legislation is probably not as widely known as it could be. However; in this case such a discussion is almost superfluous in the face of the long timelines that Genetically Modified Organisms (which is what any resulting plants having these genes would be) face in getting to the farm.

As it stands, current GMO legislation in South Africa (which is considered liberal by world standards) means that any GMO crop will effectively need to spend years in field trials before it can be sold. The result, so far, has been a scant trickle of new GMO crops getting registered each year. Nearly all of the recent registrations are for maize, cotton or soybean with 'stacked' traits – simple remixes which combine well-known genes dating back to the 1990s. These genes, in turn, are almost universally for insect resistance or herbicide tolerance, rather than increased yield. This is to some extent the intended result of a conservatively-designed system – to intentionally slow progress to a trickle rather than take the risk of producing new weeds.

Repeat this process across every country or jurisdiction of the world, and the result is that the US government would have at most a scant few years of patent protection available before its ground-breaking technology goes into the public domain. The most likely outcome of this patent story, then, is that well-intentioned and conservative-minded legislation will delay a desperately-needed revolution in food security for years to come.

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

Click to Login as an existing user or Register so you can print this article.

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”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions