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South African Intellectual Property Law Journal

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
2521-2591

Description:

The South African Intellectual Property Law Journal (IPLJ) strives to be the journal of choice for academics, practitioners and students of intellectual property law. It focuses on intellectual property law and policy. Its primary scope of coverage is South Africa. However, it publishes papers on intellectual property law and policy from other jurisdictions, especially in Africa, with relevance to the South African context.

Issue Number

Latest documents

  • The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the CRISPR patent and licensing regime may impact access to CRISPR-related tuberculosis therapies

    Tuberculosis (TB) continues to be the top killer disease in South Africa; there is little hope of a very efficient treatment in the near future. It is therefore becoming increasingly clear that the long-term solution to TB requires more than simply adding to the current arsenal of TB drugs. A treatment that provides quicker and long-lasting results is needed. Public health innovations such as genome editing present a promising therapeutic paradigm shift in terms of TB immunisation or treatment. The diversity of the Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR)-Cas9 genome-editing technology holds promise in its ability to alter the genome and to control gene expression. While the promotion of CRISPR research is a crucial public health intervention, the realm of patent laws clashes with promoting public health needs, which may delay the speedy use of this technology for disease treatment. For that reason, in this article, I discuss the South African CRISPR patent landscape and its impact on the proposed applications of genome editing technology in public health. I explore the complexities raised by the CRISPR patent landscape and how that may lead to high prices for these CRISPR therapies – thereby limiting patients' access. I conclude by proposing recommendations on how we can efficiently bridge the disconnect between the existing CRISPR patents and access to CRISPR therapeutics as a public health benefit.

  • Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf Ag

    The delict of passing off has evolved and expanded incrementally over time and remains a powerful means of protecting unique aspects of one's products. While passing off seeks to prevent unlawful competition, courts are tasked with balancing which interests ought to be protected by passing off claims against the need to allow market forces and not to unduly constrain competition. The test for passing off has consisted of proof of reputation, misrepresentation and damage. A fundamental component of establishing reputation has been the need to demonstrate its distinctiveness. Notwithstanding this, the law on passing off has also developed to exclude 'legitimate copying' – especially where a particularly successful get-up transforms into a market standard. The Supreme Court of Appeal's decision in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG is an opportunity to consider how these concepts operate in a market where many products share similar features, and where the claimant controls a significant proportion of the market share. While Koni offers much food for thought, this article seeks to explore its treatment of distinctiveness in the context of proving reputation and to offer a pathway to develop this test in a manner that better promotes consumer interests and preserves fair competition.

  • Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

    Although the COVID-19 pandemic has receded from daily news coverage, it still continues. Despite states committing to a human rights approach to ending the pandemic, and bearing human rights obligations to that effect, they have under-realised these obligations during this crisis. This article identifies the institutional design of the international trade regime as one of the key reasons for this failure. The article analyses the COVID-19 TRIPS waiver proposals and the Geneva package outcome emerging from the World Trade Organisation (WTO). It focuses on one aspect of both waiver proposals that is absent from the Geneva package outcome: states' commitment to refrain from approaching the WTO Dispute Settlement System (DSS). The article argues that state parties to international human rights treaties and the WTO-covered agreements bear concurrent trade, intellectual property and human rights obligations. While international law requires states to harmoniously interpret these obligations to give effect to all of them, states have failed to do so. Instead, states' trade and intellectual property obligations have become hegemonic, leading to the prioritisation of the market at the cost of human lives during one of the biggest humanitarian crises in recent memory, and necessitating the waiver proposals. The article concludes that, in the short term, waivers of intellectual property obligations as well as commitments not to bring actions at the WTO DSS are crucial to ensure that states can fulfil their human rights obligations during pandemics. In the longer term, this state of affairs highlights the need for rethinking existing international legal structures and the values that they promote.

  • Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

    This article surveys the patent opposition legal landscape in the SADC region and justifies the importance of patent opposition for access to essential medicines by SADC citizens. The article uses Thailand as a comparative jurisdiction and, after taking a closer look at the patent opposition provisions of the laws of Botswana, Malawi, Zambia and Zimbabwe, the article advances the view that the SADC patent law reform agenda can learn a lot from its Thai counterpart on pharmaceutical patent opposition. Most SADC members with patent opposition provisions in their laws provide for pre-grant rather than post-grant opposition. Generally, pre-grant and post-grant patent opposition procedures ensure that only deserving patents may be successfully applied for and granted. The article concludes that the Thai pre-grant opposition procedures are an example of progressive law, which the SADC region should consider emulating to improve access to affordable essential medicines. The Thai experience may provide helpful and practical pointers for some SADC members when their patent opposition procedures are eventually tested before the courts and intellectual property tribunal.

  • Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

    Nigerian fashion entrepreneurs are finding the market increasingly appealing due to the growing viability of small and medium-size enterprises (SMEs) in the fashion industry, particularly online retail fashion stores, and the easy accessibility of the Internet and digital media. However, with intellectual capital being the hallmark of the fashion industry, the nearly constant violation of intellectual property (IP) rights is a threat to the fashion sector's continued existence and profitability in Nigeria. Fashion businesses are thwarted by an antiquated IP regime and the conflicting decisions of the courts on infringement cases which continue to frustrate the marketing of fashion brands on social media. This study used a descriptive and analytical approach, relying on both primary and secondary data, to analyse and assess the laws available for the protection of fashion designers' intellectual works. The study also considers the various developments in fashion IP protection in more advanced countries, such as the United States and in the European Union, and makes practical recommendations to support the growth of IP law, fashion legislation and the Nigerian fashion industry in the digital economy.

  • Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

    Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court's decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.

  • DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

    This paper draws from and builds upon DO Oriakhogba 'What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective' (2021) 42(2) Business Law Review 89. It reviews the recent granting of a patent by the Companies and Intellectual Property Commission (CIPC) to Dr Stephen Thaler in respect of the DABUS-generated invention in South Africa and the judgment of the Australian Federal Court (FCA) upholding AI-inventorship. The review, which is based on desk research, is conducted against a backdrop of statutory provisions and case law from both countries, the provisions of the Patent Cooperation Treaty (PCT) and relevant literature dealing with the inventorship question. The paper determines whether, without reform of the extant patent law and policy, recognition of artificial intelligence (AI) as an inventor does not undermine the foundational concept of human inventorship, and the central focus on human creation and agency for intellectual property protection in South Africa and Australia. In connection with this, the paper asks and examines the question of whether the CIPC patent grant and the FCA judgment can stand judicial scrutiny under the extant patent regimes in South Africa and Australia.

  • Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

    In South African law, the substantive requirements for a patent may be scrutinised during infringement proceedings or revocation proceedings. Lack of novelty (or anticipation) is a ground for revocation of a patent but can also serve as a defense in an infringement matter. After a series of decisions by the Commissioner of Patents and the Supreme Court of Appeal on infringement and revocation matters relating to Merck's Patent 98/10975 and its alleged infringement by Cipla (now Ascendis), the Constitutional Court was asked to deliberate the matter in Ascendis Animal Health (Pty) Limited v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). The main issue related to the principle of res judicata, and whether invalidity of a patent may be considered as a defense during infringement matters after the validity of the patent was already determined during revocation proceedings between the same parties. The decisions also considered whether each revocation ground constituted a separate issue or whether revocation is the issue for purposes of determining whether a matter is res judicata. A review of all the preceding decisions also indicate that the Supreme Court of Appeal may have developed the way in which lack of novelty is determined in South African law, but without explicitly acknowledging that the approach is different. The Constitutional Court's evenly split decisions (per Khampepe J and Cameron J) indicate different approaches to reaching just and fair outcomes in patent matters. While Khampepe J's decision focuses more on the need to remove invalid patents from the register, Cameron J's decision focuses on preventing harm from piecemeal litigation.

  • A right to read object code — software copyright law and the development of a decompilation exception in South Africa

    The opportunity to read and extract knowledge from a lawfully obtained copy of any published work is a cornerstone of copyright law, except in the case of computer programs. This article examines the development of an exception to copyright protection that will permit decompilation of object code as a means to access its underlying ideas. It illustrates that the persistent link between software and literary works leads to an unduly narrow view of decompilation. This contention is supported by a basic technical illustration of the decompilation process to support the submission that reading object code should not amount to copyright infringement in any way. Thereafter, the proposed decompilation exception in South African copyright law is critically analysed in light of the developmental objectives expressed in national policy, to formulate an alternative approach based on the inherent flexibilities in international law and local conditions.

  • Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

    This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

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