Intellectual Property Rights from Publicly Financed Research and Development Act, 2008 – The IPR Act

Intellectual Property Rights is without doubt a hot button topic. The main purpose of the IPR Act is to ensure that all intellectual property (IP) which emanates from State-financed research is identified, protected, utilised and commercialised for the benefit of all the people of the Republic. The IPR Act aims to provide a harmonized approach to the management of IP which emanates from institutions receiving public funding and to reward the creators of the IP through a benefit sharing agreement.

The institution (for example, universities, state organisations or private institutions receiving state grants) at which the IP is generated is also the owner of such IP, unless it decides that it does not want to retain the Intellectual Property Rights. If the institution elects not to retain ownership, the institution must notify the National Intellectual Property Management Office (NIPMO) of its decision, who then has a choice to become the owner of the IP on behalf of the State and to utilise the invention for the benefit of the people of the Republic. If NIPMO declines to become the new owner, the institution must give the creator(s) or inventor(s) of the IP the opportunity to apply for IP protection in his/her/their personal capacity. NIPMO may at any time demand an assignment of the Intellectual Property Rights to the State if such IP is not being commercialised by the institution.

Intellectual Property Rights

The institution must provide effective mechanisms for disclosure of IP, ensuring that the IP is protected, and managing commercialisation of the IP. For this purpose, the IPR Act provides for the establishment of a Technology Transfer Office (TTO), which must be staffed by personnel of the institution having the appropriate qualifications and experience in interdisciplinary fields to fulfil the functions of the TTO.

An important object of the IPR Act is that it provides for benefit-sharing of the profits that may emanate from publicly financed research. The IP creators are entitled to at least 20 percent of the first one million rand in revenue, and thereafter at least 30 percent of the net revenue which accrues to the institution by means of commercialisation of the IP by the institution. The IPR Act requires that the revenue which accrues to the institution may be utilised as the institution sees fit, as long as a portion of it goes towards further research and development, obtaining statutory protection of IP, and supporting the functions of the TTO.

Please contact us should you require additional information regarding the IPR Act and Intellectual Property Rights.

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