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Tel: +27 21 526 2800
Fax: +27 86 660 6208 / +27 21 526 2801
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Discovery Phase Researchers No Longer Require A Bioprospecting Permit
On 27 May 2009, the National
Environmental Management:
Biodiversity Act 2004 was
amended to allow academic
researchers to continue working
with indigenous South African
biological resources or
traditional knowledge without
obtaining a bioprospecting
permit.
This amendment addresses the
concerns of local researchers
that have been the subject of
vigorous debate since the
Biodiversity Act came into law
in 2004. However, although
bioprospecting permits are no
longer required for the
discovery phase of
bioprospecting, a bioprospecting
permit must be obtained for the
commercialisation phase of
bioprospecting. Therefore,
before any project involving a
bioprospecting discovery phase
is initiated, notice must be
given to the Minister of Water
and Environmental Affairs,
together with a commitment to
comply with the requirements of
the Act should the project
progress to a commercialisation
phase.
The amendment specifies how to
determine when a bioprospecting
project crosses the line from
the discovery phase to the
commercialisation phase. A
project is deemed to be in the
discovery phase if the potential
commercialisation or industrial
exploitation in relation to the
project is not sufficiently
clear or known to begin the
process of commercialisation.
However, the filing of a
complete patent application
anywhere in the world, the
commencing of clinical trials
and product development, or the
obtaining or transferring of any
intellectual property rights
will result in the
bioprospecting project being
regarded as having entered the
commercialisation phase. Further
activities that infer the start
of the commercialisation phase
include the multiplication of
indigenous biological resources
through cultivation, propagation
or cloning, or other means to
develop and produce products,
such as drugs and industrial
enzymes to name a few.
From a practical viewpoint it is
now necessary for researchers
intending to patent subject
matter arising from a
bioprospecting project to first
apply for, and obtain, a
bioprospecting permit before
filing a complete patent
application.
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© 2010 - Von Seidels Intellectual Property Attorneys
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