Protection of Businesses Act, 1978
R 385
Intellectual Property Rights from Publicly Financed Research and Development Act, 2008 (Act No. 51 of 2008)RegulationsIntellectual Property Rights from Publicly Financed Research and Development Regulations, 200911. Conditions for local intellectual property transactions |
| (1) | A recipient may, subject to section 11 of the Act and subregulations (2), (3) and (4) determine the terms and conditions for any non-exclusive licence in the Republic to intellectual property fully owned by the recipient, on an arms-length basis. |
| (2) | Subject to the written consent of co-owner(s) of co-owned intellectual property, which may not be unreasonably withheld, a recipient may determine the terms and conditions for any non-exclusive licence in the Republic to such co-owned intellectual property. |
| (3) | NIPMO approval must be obtained for any licence in terms of which— |
| (a) | the consideration payable by a licensee to a recipient is not determined on an arms-length basis; |
| (b) | a recipient grants a licensee rights to commercialise its intellectual property on a royalty-free basis; or |
| (c) | the licensee falls into the categories referred to in paragraphs (a) and (b), and is granted a right to sub-licence on a consideration determined on an arms-length basis in the case of paragraph (a) or for a royalty in the case of paragraph (b). |
| (4) | Each intellectual property transaction must include the following statement - "The intellectual property under this transaction was created with support from the South African Government; ((under the contract number where applicable) awarded by (identify the Funding Agency or relevant government department) where applicable)) and is subject to the requirements of the South African Intellectual Property Rights from Publicly Financed Research and Development Act, 2008 and its regulations ("Act 51 of 2008"). The South African Government has certain rights to the intellectual property in terms of sections 11(1)(e), 11(2) and 14 of Act 51 of 2008". |
| (5) | The recipient must ensure that before granting an exclusive licence in the Republic, it is satisfied that the prospective licensee is capable of developing the intellectual property further where required and of undertaking the commercialisation thereof, and in the case of co-owned intellectual property the recipient will do so in consultation with the co-owner(s). |
| (6) | The exclusive licence agreement must in addition to the statement in subregulation (4) include appropriate terms and conditions and in particular— |
| (a) | require that commercialisation of the intellectual property by the prospective licensee must ensure that the intellectual property is used for the benefit of the Republic; |
| (b) | the irrevocable and royalty-free right of the State to use or have the intellectual property used on behalf of the Republic, for the health, security and emergency needs of the Republic in terms of the Act; and |
| (c) | NIPMO's rights in terms of section 14(4) of the Act, if the intellectual property is not commercialised within the reasonable period set out in the exclusive licence agreement. |
| (7) | The recipient must develop and implement policy provisions to give effect to the following preferences in respect of the commercialisation of the intellectual property— |
| (a) | BBBEE compliant entities and small enterprises; |
| (b) | parties that seek to use the intellectual property in ways that provide optimal benefits to the Republic; and |
| (c) | parties that made material contribution to the research and development giving rise to the intellectual property. |
| (8) | NIPMO must approve the policy provisions referred to in subregulation (7) in respect of their compliance with the spirit of the Act. |
| (9) | Any recipient wishing to assign intellectual property governed by this Act, to an entity in the Republic must submit to NIPMO an application for approval of such assignment, in prescribed Form IP4, and in the case of co-owned intellectual property the recipient will do so in consultation with the co-owner(s). |
| (10) | In the application referred to in subregulation (9)— |
| (a) | the recipient must demonstrate that such assignment is in the public interest; or |
| (b) | provide reasons as to why the intellectual property cannot be commercialised through other means such as an exclusive licence. |
