It makes no sense why one must pay for gaining knowledge - please look into Aaron Swartz. I hope the words of Joseph Stiglitz are taken seriously - as law firms protecting their food can and will never be a good thing for any society
Compulsory licensing in the Act is in part covered by section 56 which prescribes instances where an interested party may apply to use a patented invention where certain criteria are present in any one case, stating, ‘Any interested person who can show that the rights in a patent are being abused may apply to the Registrar in the prescribed manner for a compulsory licence under the patent’. It has been stated that, ‘abuse of the patent right is the cornerstone of the provision’ and as such compulsory licensing does not automatically arise unless the aforementioned abuse is present. The section prescribes instances where it can be properly said that there is an ‘abuse of the patent right’. These include,
‘the patented invention is not being worked in the Republic on a commercial scale or to an adequate extent… demand for the patented article in the Republic is not being met to an adequate extent and on reasonable terms…. by reason of the refusal of the patentee to grant a licence or licences upon reasonable terms, the trade or industry or agriculture of the Republic or the trade of any person or class of persons trading in the Republic, or the establishment of any new trade or industry in the Republic, is being prejudiced, and it is in the public interest that a licence or licences should be granted… the demand in the Republic for the patented article is being met by importation and the price charged by the patentee, his licensee or agent for the patented article is excessive in relation to the price charged therefor in countries where the patented article is manufactured by or under licence from the patentee or his predecessor or successor in title.’
What the section demonstrates is that the South African law on patents is compatible with compulsory licensing on reasonable terms and includes reasonable compensation for such compulsion.
Section 55 of the Act prescribes that,
‘Where the working of a patent (hereinafter referred to as a dependent patent) without infringement of a prior patent is dependent upon the obtaining of a licence under that prior patent, the proprietor of the dependent patent may, if agreement cannot be reached as to such licence with the proprietor of the prior patent, apply to the commissioner for a licence under the prior patent.’
The section demonstrates further how South African law supports compulsory licensing, with the requisite restrictions. These restrictions for the aforementioned section being, that the dependent patent is worked for the sole purpose of being worked and no other reason. Furthermore, the dependent patent holder must also, grant on reasonable terms the prior patent holder a cross-licence to use the invention claimed in the dependent patent.Moreover, ‘the invention claimed in the dependent patent involves an important technical advance of considerable economic significance in relation to the invention claimed in the prior patent’, and finally, ‘the use authorised in respect of the prior patent is not assignable except with the assignment of the dependent patent’.
Parallel importation is dealt with in section 45(1) and (2) of the Act, the former grants the patent holder the exclusive right to import the patented product. However, by virtue of section 45(2), which states, ‘The disposal of a patented article by or on behalf of a patentee or his licensee shall, subject to other patent rights, give the purchaser the right to use, offer to dispose of and dispose of that article.’ The effect of the section is that it frees the goods from the monopoly of the patent holder, and in effect gives them to the purchaser. And as such if the patent holder has by consent granted the rights it has by virtue of its monopoly over the patented goods to someone else, such goods can be used by such buyer in any way they so choose. Thus it would seem that if a buyer were to purchase goods and import them into the Republic they could then resell such goods unless the seller (licensee) of the goods had a restriction placed on them by the original patent holder in the licensing agreement. There have been some principles laid down on parallel importation namely: If the patentee sells/disposes of the patented goods, such goods will be freed from all restraints which are granted to the patentee by virtue of their monopoly in the goods.Moreover, ‘where the patented article is disposed of by the patentee's assignee or his agent, acting within the scope of his authority, it is similarly freed from such restraints’. Finally, where the ‘sale of the patented article is by a licensee of the patentee, the matter must depend on the extent of the authority conferred on the licensee by the licensor under the licence or the agreement’. The final analysis being held to only refer to a licensee under the South African patent. Thus, as suggested above having the effect of allowing the patent holder from restricting licensee holders of the patent from outside the Republic from selling the goods in South Africa.
Section 69A of the Act can be argued to be, a section which permits use of patented inventions for research purposes. The section states,
‘It shall not be an act of infringement of a patent to make, use, exercise, offer to dispose of, dispose of or import the patented invention on a non-commercial scale and solely for the purposes reasonably related to the obtaining, development and submission of information required under any law that regulates the manufacture, production, distribution, use or sale of any product’.
The section can be construed as allowing for the use of patented articles in order to advance any field which relates to the patent – so long as, such use is restricted for the purpose stated in the aforementioned quoted section.
