Compulsory patent licensing in South Africa : a comparative analysis

Abstract

This dissertation exposes misapprehensions about compulsory patent licensing and the abuse of patent rights as a possible barrier to commercialisation, founding its arguments on legislative provisions applicable to the inventor, vis-à-vis, the public interest, and entrepreneurs choosing their trade freely. The regulatory environment in the granting of compulsory patent licensing is discussed, through a local and comparative analysis. As such, the objective of this study is to investigate best practices and to introduce changes in compulsory patent licensing which are less onerous to interested persons. A study is made to determine if compulsory patent licensing can effectively regulate and remedy cases of abuse of patent rights and remove limitations to patent accessibility from a constitutional and competitive perspective. The study critiques the current South African Patents Act for being reactive rather than proactive in preventing patent abuse. It proposes a shift towards preventative measures, aligning with international standards, and offers a novel approach in the local context. It is concluded that barriers to commercialisation under compulsory patent licensing can be eliminated by shifting the burden of proof of abuse from the interested person to the patentees when a license is requested. Detailed proposals for amendments to the Patents Act are proposed to include omitted TRIPS provisions also providing for the Registrar and the Patent Examination Board to adjudicate licensing in certain instances as opposed to the Commissioner. The research suggests a novel framework for compulsory patent licensing that places human rights and anti-competitive behaviour at its core.