This editorial was originally published in the Business Day on 4 August 2015. The original editorial can be accessed at:
ONE of the cornerstones of an effective intellectual property (IP) system is the examination of patent applications. After all, before approving an application, the “invention” in question must meet the legal criteria for what deserves to be granted a patent. Unless you believe monopolies are unreservedly beneficial for free trade and society more generally, you would agree that it is illogical to grant a 20-year patent without checking whether the “invention” is new and innovative.
Under the current “depository system” SA does not examine patent applications. If the paperwork is filed correctly, the patent is granted.
Our patent system has thus allowed high numbers of unwarranted patent monopolies or extensions of existing monopolies, which limits and delays competition in our local markets. Granting undeserved patents has particularly serious implications for access to medicines, since companies may file multiple patents on medicines over time to delay the introduction of generic competitors. Low-quality patents are vulnerable to challenge in court but in reality this is not a true safeguard as patent litigation is expensive, lengthy, uncertain and infrequent.
The good news is that the Companies and Intellectual Property Commission (CIPC) has announced plans to replace the depository system with an examination system. The feasibility and effect of such a system has been the focus of discussions and debates among policy makers, industrial players, academics and civil society. SA should not, however, fall into the trap of thinking that the complexity of patent examination and resistance to change are excuses for inaction.
One valid concern is the requirement for highly skilled human resources to conduct patent examination. The best way to deal with this challenge is to phase in the system’s introduction. CIPC could start by introducing patent examination in sectors such as pharmaceuticals, where the public interest provides a strong reason to prevent poor-quality patents from being granted. As human resource capacity is developed, examination can be expanded to additional sectors.
Another proposed solution to human resource constraints relies on collaboration with other countries’ patents offices. Improving information flow between IP offices can expedite decision-making processes.
However, it is vitally important that the ultimate decision on patent applications is made by SA, to be in line with national legislation and developmental objectives.
The cost of running a patent examination system has been another point of contention. Resources required, however, could be financed by restructuring patent application and maintenance fees, which are 20-30 times lower than in other developing countries. The Indian Patents Office generates a significant surplus over operating costs through its fee structure. There is no reason SA cannot do the same.
Higher patent application fees will also help discourage frivolous applications. Altering fee structures need not make application costs unaffordable for small businesses or local applicants.
Other countries, including the US, charge different filing fees, depending on the size of the entity.
Make no mistake, SA will not establish a fully functional patent examination system overnight. Yet, the longer we wait, the greater the financial burden of affording life-saving medicines will become.
This reality means the CIPC must, as a matter of urgency, start training patent examiners and building the structures needed to facilitate patent examination. Refusing to start this journey would be a deeply negative form of defeatism, and a failure to take the necessary steps to improve access to medicines.
. Low is with the Treatment Action Campaign; Tomlinson and Hill are with Doctors Without Borders SA and Rugege is with SECTION27