Traditional Knowledge Laws: South Africa

Subject Matter of Protection

Section 2

Genetic resource means

(a) any indigenous genetic material; or

(b) the genetic potential or characteristics of any indigenous species.

Indigenous biological resource means an indigenous biological resource as defined in section 1 of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004). 

Traditional knowledge means the knowledge that an indigenous community has regarding the use of an indigenous biological resource or a genetic resource.

Scope of Protection

Section 30 of the principal Act is hereby amended by the insertion after subsection  (3) of the following subsections:

"(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or
traditional knowledge or use.

(3B) The registrar shall call upon the applicant to furnish proof in the prescribed manner as to his or her title or authority to make use of the indigenous biological resource, genetic resource, or of the traditional knowledge or use if an applicant lodges a statement that acknowledges that the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic  resource, or traditional knowledge or use."

Trigger of Disclosure

Section 30

(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

(3B) The registrar shall call upon the applicant to furnish proof in the prescribed manner as to his or her title or authority to make use of the indigenous biological resource, genetic resource, or of the traditional knowledge or use if an applicant lodges a statement that acknowledges that the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

Content of Disclosure

Section 30

(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

(3B) The registrar shall call upon the applicant to furnish proof in the prescribed manner as to his or her title or authority to make use of the indigenous biological resource, genetic resource, or of the traditional knowledge or use if an applicant lodges a statement that acknowledges that the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

Consequences of Non-Compliance

Section 61

(1) Any person may at any time apply in the prescribed manner for the revocation of a patent on any of the following grounds only, namely

[…]

(g) that the prescribed declaration lodged in respect of the application for the patent or the statement lodged in terms of section 30(3A) contains a false statement or representation which is material and which the patentee knew or ought reasonably to have known to be false at the time when the declaration statement or representation was made.