Chemical Technology August 2015

Chemical Technology • August 2015

Petrochemicals

COVER STORY

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

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

www.hahn.co.za,

so that he can help you navigate the regula-

torymaze as well as protect your innovations and inventions.