Bio-economy, patents, and the commercialisation of traditional knowledge on the medicinal uses of plants in South Africa

• Jurisdiction: South Africa
• Citation: (2018) 30 SA Merc LJ 251
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 251-279
• Author: Emeka Amechi

BIO-ECONOMY, PATENTS, AND THE

COMMERCIALISATION OF TRADITIONAL

KNOWLEDGE ON THE MEDICINAL USES OF

PLANTS IN SOUTH AFRICA

EMEKA POLYCARP AMECHI*

Senior Lecturer, University of Port Harcourt

Abstract

South Africa has identif‌ied the promotion of a vibrant bio-economy

as integral to its quest to transit from a resource-based to a

knowledge-based economy. Towards achieving this end, the

Department of Science and Technology (DST) adopted the

Bio-economy Strategy. The strategy recognises that South Africa’s

unique natural capital of biological diversity combined with its

wealth of traditional knowledge (TK), forms one of the country’s

greatest assets, and hence, seeks to utilise resources towards

advancing South Africa in the global economy. The strategy further

recognises that the economic value of these resources can be

enhanced by the use of intellectual property, particularly patents, in

commercialising innovative products or inventions based on or

derived from biodiverse TK. This article explores the use of patents

in promoting the commercial use of TK on the medicinal uses of

plants (TKMUP) in South Africa. Specif‌ically, it focuses on the links

as well as the challenges involved in using patents in promoting the

commercial utilisation of knowledge in the country.

I INTRODUCTION

In its quest to participate effectively in the global economy that runs

increasingly on knowledge, South Africa is currently seeking to trans-

form into a knowledge-based economy, in which the production and

* LLB (UNN) LLM (Wits) PhD (Wits). Former postdoctoral fellow, College of Law,

University of South Africa, Pretoria. A draft of this paper was presented at the University of

South Africa’s Annual Research and Innovation Week 23 March 2015 at Brooklyn House

Pretoria. In addition, the discussion in this paper on the communalism of traditional

knowledge (TK), has been extensively discussed in a recently published article by the same

author titled ‘Whose knowledge is it anyway? Traditional healers, benef‌it sharing agreements

and the communalism of traditional knowledge on the medicinal uses of plants in South

Africa’ (2017) 4 South African Law Journal 847.

251

(2018) 30 SA Merc LJ 251

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dissemination of knowledge leads to economic benef‌its and enriches all

f‌ields of human endeavour.

1

Integral to achieving this, is the promotion

of a vibrant bio-economy.

2

To this end, the Department of Science and

Technology (DST) adopted the Bio-economy Strategy in 2014.

3

This

strategy provides a high-level framework to guide biosciences research

and innovation investments, as well as decision-making in South

Africa.

4

An important development entrenched in the strategy is the

drive to expand the country’s shift in focus from developing biotech-

nology capabilities to developing a bio-economy. This requires that the

biotechnology sector join forces with the Information and Communica-

tions Technology (ICT) sector, environmental agencies, social sciences,

and other technologies — especially indigenous or traditional know-

ledge (TK) systems — to create holistic solutions and industrial

applications.

5

With regard to the TK system of practice, as the world’s

third most biologically diverse country, the strategy recognises that

South Africa’s unique natural capital of biological diversity,

6

combined

with its wealth of TK, forms one of the country’s greatest assets.

7

These

assets can be used to advance South Africa’s comparative advantage in

the global economy.

8

The strategy also recognises that the economic value of such intan-

gible assets can further be enhanced by the use of intellectual property,

particularly patents, in commercialising innovative products or inven-

1

‘Innovation towards a Knowledge-Based Economy: Ten-Year Plan for South Africa

(2008–2018)’ (Department of Science and Technology, Pretoria, 2008), available at http://

unpan1.un.org/intradoc/groups/public/documents/CPSI/ UNPAN027810.pdf, accessed

13 July 2014.

2

The term ‘Bio-economy’ refers to activities that make use of biotechnological innova-

tions based on biological sources, materials, and processes, to generate sustainable socio-

economic and environmental development. See ‘The Bio-economy Strategy’ (Dept of

Science and Technology, Pretoria, 2013) available at http://www.gov.za/ documents/

download.php?f=207579 at 6, accessed 24 March 2014.

3

See ‘The Bioeconomy Strategy’ (Department of Science and Technology, 2013), available

at http://www.gov.za/documents/download.php?f=207579, accessed 12 January 2015 (‘Bio-

economy Strategy’)

4

The Bio-economy Strategy 3, 6.

5

The Bio-economy Strategy 3, 9.

6

For instance, the Cape f‌loral region, a United Nations Educational, Scientif‌ic and

Cultural Organisation (UNESCO) world heritage site and a global biodiversity hotspot, is

reputedly one of only six in the world to boast an entire plant kingdom. Known as the Cape

Floral Kingdom, this area has the highest recorded species diversity for any similarly sized

temperate or tropical region in the world. See ‘White Paper on the Conservation and

Sustainable Use of South Africa’s Biological Diversity’ (Department of Environmental Affairs,

Pretoria, 1997) 12 available at http://www.info.gov.za/view/DownloadFileAction?id=195656,

accessed 13 July 2014.

7

The Bio-economy Strategy 7.

8

The Bio-economy Strategy 7, 18–19. See also Sunder, ‘The invention of traditional

knowledge’ (2007) 70 Law & Contemporary Problems 97 at 111.

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