| (1) |
A recipient, when making the choice referred to in section 4(2)(a) of the Act, must consider the following— |
| (a) |
how the intellectual property may contribute to the socio-economic needs of the Republic and global competitiveness of the Republic; |
| (b) |
forms of intellectual property protection, statutory or otherwise, that are most appropriate for the intellectual property in question; |
| (c) |
the extent to which such intellectual property protection is likely to undermine the socio-economic needs of the Republic; |
| (d) |
the extent of readiness of the intellectual property for protection, and any further research and development that would still be required before such protection could be obtained, where relevant; |
| (e) |
the costs and advantages of the various possibilities for protection; |
| (f) |
the potential for commercialisation of the intellectual property; and |
| (g) |
whether the intellectual property should be placed in the public domain. |
| (2) |
Where the intellectual property cannot be protected through statutory registration but has the potential to address the socio-economic needs of the Republic or to be commercialised, or the recipient elects to retain ownership thereof, the recipient must report to NIPMO as required in terms of section 5(1)(h) of the Act. |
| (3) |
Where the intellectual property— |
| (a) |
requires further research and development to be undertaken before appropriate protection can be obtained, whilst retaining ownership thereof and maintaining confidentiality of the intellectual property; or |
| (b) |
has no prospects of addressing the socio-economic needs of the Republic or prospects of being commercialised, |
| (c) |
a recipient will not be required to obtain statutory protection of the intellectual property or to report to NIPMO regarding its election not to proceed with statutory protection. |
| (4) |
Where the recipient does not wish to obtain statutory protection or retain ownership of intellectual property which can be protected through statutory forms of protection— |
| (a) |
which has commercialisation prospects; or |
| (b) |
which can contribute to the socio-economic needs of the Republic; or |
| (c) |
because it wishes to place such intellectual property in the public domain, |
the recipient must make a referral to NIPMO in prescribed Form IP1.
| (5) |
In the cases set out in subregulation (4), the recipient must not take any action, except to keep the intellectual property confidential until such time as NIPMO has made a decision in terms of section 4(3) of the Act. |
| (6) |
In considering the referral mentioned in subregulation (4), NIPMO must, in addition to the factors set out in subregulation (1), consider the following in deciding whether or not to acquire ownership of the intellectual property and where possible obtain statutory protection in terms of section 4(3) of the Act— |
| (a) |
the provisions of section 4(3) of the Act; |
| (b) |
the norms, culture and practices of the technology sector in which such intellectual property applies; |
| (c) |
the development required to make the commercialisation of the intellectual property viable; |
| (d) |
the ability and appropriateness of such intellectual property to be protected in any territory; and |
| (e) |
the interests of any private entity or organisation that has provided some funding towards the research and development giving rise to the intellectual property. |
| (7) |
Within 60 days of a referral by a recipient in terms of section 4(2) of the Act, NIPMO must notify the recipient in writing of its decision made in terms of section 4(3) of the Act, and the reasons for the decision. |
| (8) |
Should NIPMO fail to notify the recipient of its decision as contemplated in subregulation (7) within the prescribed period, NIPMO will be deemed to have decided not to obtain ownership of the intellectual property and the recipient must, subject to section 4(4)(b) of the Act, deal with the intellectual property as it deems fit. |
| (9) |
If NIPMO decides to acquire ownership of the intellectual property in terms of section 4(3) of the Act, it must request that the recipient assign the intellectual property within 30 days of receiving such decision. |
| (10) |
A decision by NIPMO not to acquire ownership of intellectual property in terms of section 4(3) of the Act will irrevocably waive the State's rights to such intellectual property under the Act. |
| (11) |
Within 30 days of being informed of a decision by NIPMO not to acquire ownership of the intellectual property, a recipient must give an option to acquire the intellectual property to the intellectual property creators and any private entity or organisation had provided some funding to the research and development giving rise to the intellectual property, in accordance with section 4(4)(b) of the Act. |
| (12) |
In the case of NIPMO taking assignment in terms of section 4(3) of the Act— |
| (a) |
the rights of the intellectual property creators to benefit sharing must be maintained; |
| (b) |
the recipient, any private entity or organisation that contributed to funding the research and development giving rise to the intellectual property and relevant intellectual property creators will retain an irrevocable, non-transferrable, and royalty-free licence to use the intellectual property for research, development and educational purposes; |
| (c) |
NIPMO may grant to any publicly financed organisation in the Republic an irrevocable, non-transferrable, and royalty-free licence to use the intellectual property for research, development and educational purposes only; and |
| (d) |
NIPMO shall utilise the intellectual property in the spirit of the Act, and without limitation, may grant other organisations access to the intellectual property while not unduly depriving the Republic of benefits from the commercialisation of the intellectual property, where such organisations are prepared to grant equivalent access to their relevant organisations' intellectual property or other arrangements beneficial to the Republic. |
Statistics Act, 1999
