Important new paper describes why and how India set up a patent examination system

The South African patent office does not substantively examine patent applications. As long as administrative requirements are met, patents are usually granted. As a result, many patents of poor quality are granted. A University of Pretoria study estimated that had the South African patent office examined patents, 80% of patents would not be granted.

Granting an excessive number of patents leads to reduced competition. In the case of medicines, it can lead to high prices and lack of access. Many medicine patents that are granted in South Africa are not granted in other countries.

The two standard arguments against South Africa adopting a patent examination system have been that it is too expensive and that we lack the human resources. These arguments have generally gone unchallenged.

A new paper, developed for the Treatment Action Campaign (TAC) and Médecins Sans Frontières (MSF)  ‘Fix the Patent Laws’ campaign by Leena Menghaney of MSF India, shows that far from being an expense, implementing a patent examination system can in stead generate income for the state. According to the paper, the Indian patent office generates annual revenue of R230 million, while annual expenditure is only R35 million.

The paper also sets out the human resource requirements of the Indian patent office. Though these requirements are not in substantial, they are likely not as great as most policy-makers would have expected. The paper gives an exact break-down of how many people are employed in the Indian patent office and their required levels of training. At present India has 337 patent examiners and 94 controllers of patents.

The need for a patent examination system in South Africa was emphasized by a number of speakers at a recent meeting hosted by TAC and MSF and attended by various representatives from partner organisations, the Department of Trade and Industry, Department of Health and Department of Science and Technology. A report from that meeting is available here https://www.fixthepatentlaws.org/?p=459

At the above mentioned meeting the Department of Trade and Industry committed to submitting its draft intellectual property policy for South Africa to cabinet on 5 December 2012 and indicated that this would be followed by a period of public consultation. A patent examination system is one of the key issues to be addressed by the IP policy.

This new paper provides useful detail about India’s experience with setting up and running a patent examination system. We hope that this key resource will be taken into account when in the coming months South Africa debates setting up a similar system.

We highly recommend reading the full paper. It can be downloaded here: www.tac.org.za/community/files/file/WhySAneedsanexaminationsystem.pdf or at http://www.msfaccess.org/content/why-south-africa-should-examine-pharmaceutical-patents