Stop the ransom demands: compulsory licensing in the patent arena

A patent is a statutorily granted right that gives the patentee an exclusive monopoly to a patented invention for 20 years in exchange for a detailed disclosure of the construction and/or working of the invention.

The scope of the monopoly granted to a patent proprietor is defined in the patent claims and the effect of a patent in this respect is to grant to the patentee, in the Republic of South Africa, for the duration of the patent, the right to exclude others from making, using, exercising, disposing of, offering to dispose of or importing the invention, so that he or she shall have and enjoy the whole profit and advantage accruing by reason of the invention. In the event that anyone else performs any of the above, they will be in breach of the patentee’s rights and the patentee will have recourse against them for patent infringement.

The patent system, as explained above, seems clear-cut. However, technology and technological developments are not always so. Technology grows by means of development and improvement; improvements in many instances comprising small modifications to the existing technology, which may itself be the subject of a patent or patents.

These improvements, provided they meet the basic requirements for patentability, may themselves be the subject of a patent (the requirements for patentability being that the improvements are new—in other words that they do not form part of the state of the art immediately before the priority date of any claim to that invention—and inventive, implying that the invention is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art immediately prior to the priority date of the invention).