Statistics Act, 1999
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, 200914. Rights of the State to intellectual property and non-commercialisation |
| (1) | It is a specific objective of the Act to ensure that intellectual property governed by the Act is disclosed, appropriately protected and commercialised for the benefit of the Republic. Accordingly— |
| (a) | in terms of section 5(1)(h) of the Act, a recipient must unless directed otherwise, provide NIPMO with status and commercialisation reports in prescribed Form IP7 twice a year, detailing the intellectual property governed by the Act fully or co-owned by the Recipient or with co-owner(s) as well as the state of commercialisation thereof, in accordance with regulation 3(1); and |
| (b) | NIPMO may on a periodic basis, but no more than once a year, unless reasonably required, conduct reviews, in terms of section 14(2) of the Act. |
| (2) | If it comes to the attention of NIPMO that any intellectual property falling under the Act was not disclosed as required in terms of sections 5(1)(c), 5(1)(e), 5(1)(h) of the Act, NIPMO may, in accordance with the following procedures enforce the provisions of section 14(5) of the Act, subject to due notification of any co-owners of the intellectual property— |
| (a) | Prior to demanding assignment of intellectual property in terms of section 14(5) of the Act, NIPMO must first issue a written notice to the affected recipient and any co-owner(s) of the intellectual property together with supporting particulars in respect of such intellectual property, and request the recipient and any co-owner(s) of the intellectual property to provide a written response with reasons and supporting evidence why the provisions of section 14(5) of the Act should not be exercised. |
| (b) | If the recipient and any co-owner(s) of the intellectual property do not provide the written response referred to in paragraph (a) within 30 days of the date of the notice issued by NIPMO, NIPMO may demand that the recipient and any co-owner(s) of the intellectual property assign the relevant intellectual property to NIPMO. |
| (c) | Upon receipt of a response contemplated in paragraph (a) NIPMO must consider the response, request such additional information or particulars as may still be required from the recipient or any co-owner(s) of the intellectual property, and make a determination. |
| (d) | Any determination in terms of paragraph (c) will, upon application by the recipient or any co-owner(s) of the intellectual property be subject to review by the Dispute Panel, in accordance with the Dispute Panel's rules of procedure. |
| (e) | Should the Dispute Panel rule in favour of the recipient or any co-owner(s) of the intellectual property, the proceedings will be deemed to have been terminated and thereafter NIPMO may not exercise the rights upon which the proceedings were based, unless it issues a new notice based on different facts. |
| (3) | If a review referred to in subregulation (1)(b) reveals any intellectual property that is not being commercialised to the benefit of the Republic or an exclusive licensee that is not commercialising any intellectual property in accordance with the terms of the relevant licence agreement, NIPMO may in accordance with the following procedures require that the relevant recipient and any co-owner(s) of the intellectual property grant a non-exclusive licence in one or more fields or in a specified territory, as the case may be, to a third party to commercialise such intellectual property or to amend the terms of the relevant licence agreement: |
| (a) | Before exercising any of its rights in terms of this subregulation, NIPMO must consult with the recipient and any co-owner(s) of the intellectual property with a view of addressing the lack of commercialisation or understanding the reasons for lack of compliance by the exclusive licensee with the terms of the licence agreement. |
| (b) | If no progress has been made after a period of 6 months of consultation envisaged in paragraph (a), NIPMO may no later than 3 months thereafter issue a written notice to the recipient and any co-owner(s) of the intellectual property requiring that they either grant a licence to a third party or that the recipient and any co-owners put in place steps either to amend the terms of the licence agreement or to convert the exclusive licence to a non-exclusive licence and seek other commercialisation partners. |
| (4) | NIPMO's decision in terms of subregulation (3)(b) is, upon application by the recipient or any co-owner(s) of the intellectual property, subject to appeal to the Dispute Panel in accordance with the Dispute Panel's rules of procedure. |
| (5) | Should the Dispute Panel rule in favour of the recipient and any co-owner(s) of the intellectual property, the proceedings will be deemed to have been terminated and thereafter NIPMO may not exercise the rights upon which the proceedings were based, unless it issues a new notice based on different facts. |
| (6) | NIPMO may at any stage, by written notice to a recipient and any co-owner(s) of the intellectual property, terminate the proceedings referred to in subregulations (2) and (3), if it is satisfied that it does not wish to continue to exercise the rights under section 14 of the Act or if it is satisfied with the response from the recipient and any co-owner(s) of the intellectual property, or upon reaching a satisfactory outcome with the recipient and any co-owner(s) of the intellectual property. |
| (7) | The State may exercise the rights granted to it under section 11(1)(e) of the Act for health, security or emergency needs of the Republic, subject to the following— |
| (a) | a proclamation by the President, pursuant to a determination by Parliament; |
| (b) | before any proclamation in terms of this subregulation, the State must determine the ability of a recipient, co-owner(s) or any third parties licensed to commercialise the intellectual property, to meet the specific health, security and emergency need of the Republic without imposing an undue financial burden on the State; |
| (c) | the affected recipient and co-owner(s) must be notified of the proclamation, within a reasonable period thereof, and provided with an explanation of the needs for which such rights are exercised; |
| (d) | the State must exercise such rights itself or through its organs or institutions or organs of other governments or international organisations such as the United Nations or its agencies or other third parties designated by the State; |
| (e) | the exercise by the State of such rights must be reasonable until such health, security and emergency needs have been alleviated; and |
| (f) | the State must seek to balance the rights of the recipient, co-owner(s) and third parties licensed by the recipient to commercialise such intellectual property and the use by the State of the intellectual property. |
