These types of ad hominem comments aren’t appropriate on this blog, and won’t be approved in future.

I point out some of the more obvious inaccuracies:

It seems that the reason for the different perceptions is that the blogpost is based on a close reading of the law i.e. what the Act and draft regulations actually provide and not on projections of how the Act might work in some circumstances.

“The Act gives 100% ownership of any intellectual property which was developed with public research funds to the government.”

Two issues:
1. Universities are NOT the government. I am not a lawyer but I understand that although we may be publicly funded and are established by an Act of Parliament, we are autonomous.

What autonomy? The blogpost now has a footnote discussing how the Act deprives universities of autonomy, probably in an unconstitutional way.

2. 100% ownership is NOT given in the case of co-funding – then the IP is jointly owned.

Read the Act which automatically grants technology transfer departments 100% ownership of intellectual property if there is any public research financial contribution. The IP can be jointly owned only if there is a prior agreement which says otherwise. Entrepreneurs are entitled to be alerted to the automatic operations of the Act which may deprive them of intellectual property.

His statement will lead to the assumption that any IP developed with public funds, even if co-funded only, belongs 100% to the university. This is not true.

That is the assumption which the Act makes, that any IP developed with public [research] funds belongs 100% to the university or the government.

However, in the case where only public funds are used, why shouldn’t the university (not the government) own it 100%?

But that is not how the Act works, instead where public research funds (not just any public funds) are used, even if it is only 1% then the technology transfer office or NIPMO becomes the 100% owner ex lege. Is that equitable? Is that useful? TTO or NIPMO is deemed to be the 100% funder even when it is not.

Who should own it?

The entrepreneurs who contributed to it, and who are after all entrepreneurs so its their job to innovate. Innovate is used here in the sense used by Peter Drucker, to actually change how markets operate by introducing new products and services at scale, and not in the wholly mistaken use of the term to mean ‘to register a patent’.

“…SME’s can’t in the first instance get exclusive licences, so incumbent companies will have access to the same technology…”

This is NOT what the ACT says. Non-exclusive licensing is preferred by the Act, but exclusive licenses are possible and, certainly, will probably be the way forward for most deals.

Hence the term first instance.

“The Act also prevents an entrepreneur from owning the intellectual property her business is based on, and makes obtaining an exclusive licence difficult.”

This contradicts the earlier statement about the fact that SMEs can’t get exclusive licenses but, if we ignore that contradiction, the Act does not PREVENT an entrepreneur from owning the IP, it is just not a preferred route.

The Act does prohibit an entrepreneur from 100% owning the jointly developed intellectual property and thus having the freedom to innovate, to move at the speed that markets require. There is a narrow exception that if an entrepreneur can claim to have funded the research 100% (not defined), and both the university and NIPMO both agree then she may obtain exclusive ownership.

“The Act though prohibits publication of new knowledge until a patent is obtained.”

This is very misleading. Two issues:
1. The Act does not prohibit the publication of new knowledge, just KNOWLEDGE THAT CAN BE PROTECTED AND/OR COMMERCIALISED – not all new knowledge is commercialisable and the new regulations are quite clear on what should be done in that case.

The Act defines intellectual property as subject to intellectual property protection anywhere in the world. In other words if something can be “protected” anywhere in the world then it must be. That covers a lot of categories not protectable in South Africa.
The Act defines commercialisation as “the process by which any intellectual property emanating from publicly financed research and development is or may be adapted or used for any purpose that may provide any benefit to society or commercial use on reasonable terms”.

Show me the academic who admits that her research is completely incapable of being used for any purpose that may benefit South African society and I will show you the academic who is unlikely to receive any more public research funds.

2. The Act prohibits publication until a provisional patent APPLICATION has been made. Does the author even know the difference between OBTAINING a patent and making a patent application.
This apparent problem was a mere typographical error now corrected
If we had to wait to publish until we had obtained patents, no publications would ever be made as the process can take many years (there is a patent backlog at the USPTO of 5 years…)
Its useful that you mention the patent backlog, since patenting (together with registering designs or plant breeders rights) is the only way which the Act envisages to transfer technology. The Act treats global practises in which technology is transferred through teaching,the public domain, joint research, open standards, open licences and participation of academics in entrepreneurial activities as special cases requiring exceptions and in some cases special permission from a government office.

“Unlike open access journals the full text of South African patents are not available online, only a type of summary is available online and then only if one pays a subscription fee to the database. The database lacks state of the art search functionality.”

This is hardly the fault of the Act.
This is issue is now dealt with in a footnote. It does however render the Act ineffective
This has been raised as a concern for some time and, I understand, is something that is being worked on.
South Africa’s intellectual property system requires a major overhaul, and until that has been effected legislation such as the Act is at best premature. Vague statements that something is being worked on cannot cure the problem. One might wander why the urgency to put the Act in force and no comparable urgency to fix the patent system.

“A researcher is allowed to publish an article after the patent is granted but the researcher would have had to wait while the university decided to patent or not…”

My point above refers. A researcher is allowed to publish after a provisional patent application has been made – NOT GRANTED. I make these decisions and organise a provisional patent application when necessary within 2 days. Hardly a delay for publication.

What one office is able to achieve before the Act comes into force isn’t a useful indicator of the situation when the Act is in force and all the technology transfer offices are required to patent almost all research thus creating bottlenecks at both technology transfer offices AND at the patent office

I understand that the author is pushing a particular agenda and he is entitled to his opinion.
The agenda of this blog has throughout the drafting of the Act and regulations been to analyse the adverse consequences for research, and thus for South Africa’s development. This post though has not focused on those impacts but is rather in response to a number of queries about the impact of the Act and regulations on entrepreneurs who want to know how this will affect their interaction with universities. Thus although this blog usually advocates use of open licences that is not the only business model considered in the post, instead other business models are considered such as those in which exclusive ownership or control of intellectual property form the unique value proposition of an entrepreneur. Its not the agenda of this blog to promote such business models, but if the implications of the Act are to be considered for entrepreneurs then that is an important consideration.
However, I would expect him to at least get his facts right when he provides his opinion, otherwise we should look at his entire opinion as suspect.
The blogpost is based on what the Act and the draft regulations actually say, not how the scheme will be marketed to entrepreneurs.