I have been looking at the African patent system in general, as it relates to the Plumpy’Nut case. In the previous posting, I came to the tentative conclusions that, based on statistics alone, South Africa might be in a reasonably good place when it comes to IPR. However, it is necessary to go into more detail.
Can the WIPO page give any additional information?
The WIPO statistics page for South Africa has very limited information, but some intuition is possible. The main fields of technology are listed. The four largest groups are civil engineering, materials/metallurgy, chemical engineering, and basic materials chemistry, accounting for over 25% of patents filed in 1996-2010. The categories of handling and “other special machines” account for a further 10%.
Since mining is a crucial part of South Africa’s economy (6% of GDP but 60% of exports), it is a fair bet that most of the IPR in those categories is related to mining in some way or another.
The only additional piece of useful information in the WIPO statistics is the top ten list of largest domestic PCT (international) applicants in 2012. These are essentially the companies that are aiming to grow internationally. The ten companies filed a total of 75 patents. There is quite a bit of diversity in them
The largest individual patent filer (13) was the South African Sugarcane Research Institute (SASRI). Two companies related to mining (Element 6 and Detnet) filed a total of 16 applications. Discovery Holdings, with 6 patents, has filed a portfolio of business software patents in the USA. Sasol Technology (5 applications) is in the petrochemical industry. Most of the other large filers are universities.
Although this is nothing more than an impressionistic view, it does suggest that South Africa is not being dominated by foreign interests to the same extent that other African countries might be.
What does the CIPC look like in reality?
Intellectual property in South Africa is handled by the Companies and Intellectual Property Commission (CIPC, Web page). The CIPC page on patents does not on the face of it contain anything that would differ significantly from the European system. However, reading in depth, the reality does not look quite so good. Although the CIPC is a serious and professional organization, there are severe limitations to what it can do.
“The responsibility for ensuring that the application is valid resides with the applicant. South Africa is a non-examining country. This means that CIPRO does not investigate the novelty or inventive merit of the invention – only the form or documentation is verified and not the substance of the product or process. For peace of mind, the inventor can make use of the services of a qualified patent attorney to investigate the existence of previous patent specifications that relate to the relevant invention. This procedure, although expensive, may negate possible future litigation procedures and unnecessary financial expenses. It is crucial that an international patent search should be conducted, especially if an inventor wants to commercialise a product or process in foreign countries. The same applies for a patentee, who wants to commercialise an invention and who does not want to infringe someone else’s patent. A search should then be conducted at the South African Patent Office. No online search facilities exist for South African Patents and all searches are carried out by hand at the Patent Office through a card based system, however, electronic patent searches may be performed on a contract basis on proprietary systems such as the Electronic Patent Journal (EPJ).”
In effect this means that any patent will be granted in South Africa if it is applied for. There are some specific rules for inventiveness, but those do not significantly differ from other countries’ rules. Since no prior art search is made, in practice the patent is granted as long as it is formally correct. Everything is done on paper (there is no electronic system). It is also extremely cheap to file for a patent (see Table below).
One can only assume that the actual validity of the patent will then only be contestable in court. The risks of this system should be obvious. In the worst case, any foreign company can file whatever they want, and it will be granted. If there is a conflict with a smaller local company, the foreigners can bring in their lawyers.
Is the reality this bad? That starts to veer into journalism, and I do not have resources to find out. Speaking from general life experience though: it’s likely to be ugly. Final conclusions will be drawn in the last part of the series.
Table: Costs of patenting in South Africa. Source: Pouris and Pouris, South African Journal of Science, 2011.
Acknowledgment: The research for this series has been done between 2012 and 2014. The series has benefited greatly from discussions with Kalle Pietilä, Viv Collins, Niko Porjo, and Timo Tokkonen.