Draft rules on IP rights in publicly financed research are stirring significant debate in South Africa between those who say the rules may stifle innovation and breach commitments with the World Health Organization (WHO) and others who say the measures are needed to boost the country’s economy. The regulations proposed by the government expand the IP rights outlined in the 2008 Publicly Financed Research and Development Act, which requires universities to assess and report on all research that holds commercial potential. Under the proposed regulations, if a university chooses not to seek IP protection, the National IP Management Office (NIPMO) — a proposed body with a staff of experts in IP, commercialization, and patents — has the right to reassess the decision. If NIPMO disagrees with the university, it may acquire ownership of the research and IP rights. If, however, NIPMO agrees with the assessment, the university is free to assign its rights to the inventor. Where all direct and indirect costs are borne by a private entity, research is considered privately funded and not subject to the law. The Department of Science and Technology has published draft rules implementing the act.

Some have raised concern about the way the government is addressing the issue. An online petition has been posted by the African Commons Project, a Johannesburg organization that helps communities to enter the digital economy through collaborative technology. The negative impact of the regulations far outweighs any benefits, the project’s leadership argues. In focusing on the use of patenting and other forms of IP protection to commercialize research in the interests of innovation, the draft rules are “hostile to, or at the very least suspicious of, open source and open processes.” The regulations also impose a series of bureaucratic reviews at the institutional and national level before open approaches are possible, at the discretion of an advisory board that “appears to be made up of patent lawyers and business experts,” the group says. This is at odds with the way many international research consortia work and will put local researchers at a disadvantage, they say. In addition, the regulations give the government “intrusive and invasive march-in rights” retrospectively to reverse decisions made by universities, according to the group. Others — particularly corporations — support the regs as a needed enhancement of IP rights that brings South Africa more in line with the U.S. and its widely emulated Bayh-Dole regulations. The legislation “represents sound public policy,” says Yasmin Forbes, Microsoft’s South Africa national technology officer. IP protection for basic research enables commercialization of the research through IP licensing, increasing the likelihood that government-funded inventions will lead to the development of new products and services, driving economic growth, employment, exports, foreign direct investment, and tax revenues, she says.

Go to: Intellectual Property Watch

Posted June 10th, 2009 under Tech Transfer

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