infoJustice

The accessibsa project (accessibsa.org) has a new report out. Authored by Jonathan Berger and Andrew Rens, the report is titled – Innovation & Intellectual Property in South Africa: The Case for Reform. It’s available here:  http://accessibsa.org/media/2018/05/Innovation-IP-in-SA.pdf

The data used in the paper is available here: http://accessibsa.org/data/

About the paper: Jonathan and Andrew examined every patent granted in South Africa between 2005-2015, i.e. over a period of 10 years. Their central questions are whether the current IP regime in SA favours innovation as measured by patents, what the state of innovation as measured by patents in SA is, how it ties into the broader legal framework that governs patents, and how all of this related to the proposed IP reform process underway in SA.

Broadly, the paper is interested in challenging a notion that has been floated, that the IP reform as envisaged, which will expand access to medicines, will also “kill” innovation.

Some highlights:

• Less than 10% of the patents granted in the country were filed by South Africans
• Contrary to popular perception, there is no evidence that dominant sectors of the economy (like mining) are dominant patentees
• The majority of patents filed by South African entities appear to be of low quality, with low value
• Higher quality patents filed by South African entities, while a small percentage, are usually filed by universities and research institutions, leading the authors to conclude that investment in these institutions is what may drive innovation as measured by patents
• The legal framework around patents is lax, and unjustly skewed in favour of the patentees, thereby sealing the case for reform

About the data: While SA patent data is public, it is not yet easily accessible on the internet. We spent considerable time and money sifting through and organising the data we obtained, so please use it as you like, and pass on to anyone you know who may be interested. The data consists of two sets: one, the set of all foreign patents granted in SA between 2005-2015, and two, the set of all South African patents granted in the country between 2005-2015.

You can get in touch with the authors through the website accessibsa.org if you have any questions for them.

The report concludes:

“This paper has not considered a key measure of the quality and value of South African patents: the number of lucrative licensing agreements entered into between patentees and users of their protected innovations. The reason for this is simple: neither CIPC nor any other public database makes such information available. This is despite section 10 of the Patents Act, which appears to require the recording of such information in the register of patents.

“One would, however, expect a patentee who is party to such a lucrative licensing agreement to record the income generated from its patented inventions in its annual reports and/or financial statements. We are not aware of any such reporting, at least not on any significant scale, providing further evidence in support of our finding that South African patents are generally of dubious quality and value.

“What the draft IP Policy does not (and cannot) address is what, in addition to an appropriate patent system, South Africa needs to do to ensure that there are sufficient incentives for innovation. Our analysis of the data points towards one possible solution: significant investment in public research institutions and universities, as well as in the individuals they employ, or intend to employ.

“The South African patent landscape is characterised by the easy grant of patents of dubious quality and value, as well as the enforcement of a legal framework that appears to be heavily skewed in favour of patentees. What this means in practice is that in exchange for very little, market exclusivity is easily granted, and maintained, ordinarily at a high cost to society. Against this landscape, the proposals contained in the draft IP Policy are easily justifiable.”

FULL PAPER: http://accessibsa.org/media/2018/05/Innovation-IP-in-SA.pdf