Chemical Technology August 2015

Petrochemicals COVER STORY

invalid and subject to revocation at the instance of a com- petitor, the Department of Environmental Affairs, or another interested party. As a result of this regulatory environment on bioprospect- ing, many businesses are simply ignoring this highly complex issue and continuing illegally, thus putting them at risk of prosecution and preventing them fromobtaining valid patent protection for their innovation. These businesses are either not aware of the onerous regulatory requirements, or are simply unable to comply due to a lack of skills in dealing with such complexities. To add to the problem, the Department of Environmental Affairs has recently redoubled its enforcement efforts! For example, rooibos extract-containing products have been removed from supermarket shelves as a result of the failure of the manufacturer to have the proper permits in place. There is no amnesty provision in either the Biodiversity Act or the BABS regulations and patents obtained unlawfully are unlikely to be saved; however, it may, however, be pos- sible to avoid prosecution if such activities are regularised by entering into the required agreements and obtaining the required permits. If you need to regularise your bioprospecting activities then contact Janusz Luterek on janusz@hahn.co.za or www.hahn.co.za, so that he can help you navigate the regula- torymaze as well as protect your innovations and inventions. z

sential oils. They also apply to non-commercial sectors that export from the Republic any indigenous genetic and biologi- cal resources for a research entity to generate scientific data. To complicate matters further, the requirements for the obtaining of these permits are very onerous and, for example, require the identification of the indigenous people who may have been using said indigenous biological resource, provid- ing the GPS co-ordinates thereof, entering into a benefit shar- ing agreement with them, and the applying to the Department of Environmental Affairs for a permit, all before any research or commercialisation can take place. In addition to the BABS requirements, the Patents Act also has provisions which refer back to the Biodiversity Act and BABS requirements, so that, where there was no notifi- cation or a permit was not obtained prior to conducting any discovery phase or commercialisation phase research, any patent granted on an invention flowing from such research would be void and would be subject to attack by a competitor or any interested party. Due to the uncertainty which prevailed prior to the BABS amendment in May 2015, there may be may companies or persons who have been illegally exploiting South Africa’s biodiversity and tradition knowledge and are therefore subject to prosecution if discovered. In addition, numerous patents which have been filed and granted for inventions flowing from indigenous biological resources and traditional knowledge without the proper permits and so on, may be

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Chemical Technology • August 2015