Large companies elsewhere in the world are well versed in substantive search-and-examination-type systems, since most advanced countries have adopted them and have the resources to navigate through the process.
South African companies are not familiar with the process and will require time and resources to get it right. This will be difficult for small and medium-sized companies that do not have the time and resources to do so.
With the depository system and using a patent attorney, it costs as little as R20,000 to file a patent at the Companies and Intellectual Property Commission (CIPC). Contrary to the assertion that it encourages frivolous patenting, patent lawyers in SA undertake research when preparing to file a patent application with the courts.
Adams and Adams patent attorney Alexis Apostolidis states: "Importantly, and what has gone largely unnoticed by detractors of the depository system, is that patents that have corresponding applications internationally are often voluntarily amended to be in line with the patents as examined in other jurisdictions, especially because one or more invalid claims in a patent will render it unenforceable until such invalidity is remedied."
With the proposed new system, we can be sure that the fees associated with filing patents with the CIPC will escalate to accommodate the increased number of staff required. The costs for patents relating to complex subject matter could easily increase by R30,000 to R60,000, depending on the extent and number of interactions with the CIPC examiner. Large companies may well be able to absorb these costs, but small, upcoming enterprises will not. A local individual will probably not be able to afford to file a patent.
Moving towards a substantive search-and-examination system may sound like a good idea, but higher costs and long delays caused by an inadequate number of CIPC staff qualified to handle the increased complexity associated with the new system will be the unavoidable, yet foreseeable result, which will frustrate the entry of local innovators. For a country such as SA that suffers from a lack of financial and human resources, a depository system would be far more appropriate.
• Urbach is an independent economist.
This article was first published in Business Day on 24 August 2017