SOUTH AFRICA Trends and Developments Contributed by: At van Rooy, Ursula Baravalle and Stuart Miller, KISCH IP
Latest Developments in the Patent Field The Department of Trade, Industry and Com- petition (DTIC) has recently announced plans to repeal and replace the current Patents Act No 57 of 1978 with a new, modernised Patents Act. Publication of the new Act is imminent and aims to align South Africa’s patent regime with inter- national best practices by, inter alia, introduc- ing substantive search and examination (SSE) of patent applications in place of the current depository system whereby patent applications are only examined for formal compliance with South African patent law. The South African Patent Office has been pre- paring for the implementation of SSE for the past 18 months through its experiential learning programme (ELP), whereby South African pat- ent examiners, trained by inter alia the European Patent Office (EPO), have been conducting SSE on selected patent applications. In terms of the current ELP, search reports are furnished to the South African patent attorneys on record, who are requested to review and respond to the find- ings of the ELP. Until now, the work products themselves have not been binding. The new Act will also provide for the introduction of utility model patents. It is envisaged that the introduction of utility models will foster acces- sible protection for local incremental innovation, which is common among small businesses in South Africa. In addition, the introduction of util- ity model patents will result in the amendment of the current Designs Act No 195 of 1993 in order to remove provisions of the current Act that will be rendered redundant. The next step is for the DTIC to publish drafts of these bills for comment; KISCH IP is at the forefront of this, continuously monitoring the progress.
Latest Developments in the Plant Breeders’ Rights Field The implementation of the new Plant Breed- ers’ Rights Act No 12 of 2018 is imminent. It was assented on 27 March 2019 but is not yet in force. Draft regulations under the new Act were published on 24 June 2022. The aim of the new Act is to comply with the 1991 Interna- tional Union for the Protection of New Varieties of Plants (UPOV) Act. The following aspects of the new Act are of interest. The new Act establishes a Plant Variety Protec- tion Committee. The purpose and functions of the Committee are to advise the Registrar on: • any technical matter arising from any provi- sion of the Act; and • any other matter relating to the administration of the Act referred to the Advisory Committee by the registrar. In terms of the new Act, the period of sole right (ie, the period during which the proprietor is not obliged to sell propagating material) is five years for vines and trees and three years for other plants. The maximum duration of a plant breeders’ right is increased from 25 years to 30 years for cer- tain types of plants, while for others it is either 20 years or 25 years, depending on the type of plant. This will be finally determined once the regulations are approved. Farmers are categorised into different catego- ries. • Vulnerable household producer: a producer that produces primarily for household con- sumption to meet daily dietary needs and has limited resources and skills to operate
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