4IR and the law

What is 4IR?

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The first industrial revolution used water and steam to mechanise
production, the second used electric energy to create mass production
and the third used electronics and information technolgy to automate
production.

The fourth industrial revolution is underway and it builds upon the third
industrial revolution and digital reviolution that has been taking place since
the mid-20th century.

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 The Fourth Industrial Revolution is understood as a collective term describing a series of “ongoing and
impending transformations in the systems that surround us”. It significantly builds on the digital capabilities
of the third industrial revolution. (Schwab and Davis Shaping the Future of the Fourth Industrial Revolution
(2018) 2).

 In particular, it involves the emergence of “cyber-physical systems” significantly enhancing the capabilities
of people and machines.

What is evident is that the world is changing along with the dramatic changes that are taking place in
technology.

Powerful technologies can make life easier and enable human achievements previously (and currently)
thought to be unattainable.

4IR is anticipated to change everything fundamentally – industries, economies, jobs, transport, skills and
education, to name but a few.
Characteristics of 4IR

Exponential expansion characterised by merging

technology that blurs the lines between the physical,
digital and biological spheres to completely uproot
industries all over the world.

The extent and depth of these changes are a sign of

transformations to entire production, management and
governance systems.
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Characteristics of 4IR

Situated at the dawn of the third millennium with the

emergence of the internet.

The industry of today and tomorrow aims to connect

all production means to enable their interaction in real
time. 4IR makes communication among the different
players and connected objects in a production line
possible thanks to technology such as the Cloud.
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Characteristics of 4IR

4IR could also be the first to deviate from the energy-

greed trend – in terms of non-renewable resources.

Integration of more possibilities to power our

production processes with alternative resources.

Tomorrow 4IR will be embedded in smart cities and

powered by wind, sun and geothermal energy.
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To adapt to the changing world and make good use
of its opportunities, people from all walks of life and all
sectors of society and economies need to collaborate
and devise some comprehensive and shared
approaches.

Both public and private sectors should be actively

involved.

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Is 4IR not simply a continuation of the third industrial revolution?
 4IR certainly depends on advancements made in the 3rd industrial revolution… but there are
characteristics that are unique to it.

Faster, more dramatic and comprehensive changes… will transform whole systems in
the way human beings have organised themselves until now.
 It will challenge our adaptive abilities as individuals, governments, businesses and
societies.
 Labour will be dramatically impacted.
 Artificial Intelligence (AI)* will take over some human functions and challenge people’s
sense of self and agency.
 Robotics will make menial work obsolete thereby improving* the quality of life.
The internet of things will make it possible to have control over vast systems… What
does it mean for the security of such systems and consequently that of people?
 Will self-driving cars improve safety on the roads? But what are the implications for a
crime-ridden society constantly facing cash-in-transit heists?

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Intellectual Property (IP) law
Intellectual property is widely characterised
as non-tangible property that is the artefact
of original human thought. Generally
speaking, intellectual property rights do not
vest in the abstract non-tangible entity;
rather they surround the control of corporeal
representations of expressions and ideas…
 Intellectual property rights protect the content creator’s
or innovator’s idea by allocating and enforcing legal
rights to produce and control corporeal representations
of these ideas. Intellectual property rights are designed to
safeguard the private interests of owners of qualifying
intellectual creations however, the intellectual property
system is not unitary, and the variety of exclusive rights it
affords need to be weighed against the public interest in
the creation and propagation of ideas, information and
knowledge

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The Convention Establishing the World Intellectual Property Organization concluded
in Stockholm on 14 July 1967, provides in Article 2(viii) that intellectual property
includes rights relating to and is divided into three categories, namely:

(i)Industrial property - which includes patents for inventions, trademarks, service marks,
commercial names, industrial designs, geographical indications and protection against
unfair competition;

(ii)Copyright - which covers literary works, artistic works, scientific worksand

architectural design; and

(iii)Neighbouring rights - related to copyright which include those of performing artists in

their performances, producers of phonograms in their recordings, and broadcasters in their
radio and television broadcasts. Scientific discoveries are also listed as intellectual property
under the said convention despite not falling within any one of the three categories outlined
above.

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Intellectual Property Law has various sources and is governedby
various domestic, regional and international instruments…

… focus is on statutory protection of intellectual property!!!!

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 Why do we have Intellectual Property Rights?
NB NB NB*

IP rights:

1. Encourage owners to engage in innovative activities that benefit society

2. Reward the innovator's effort and skills
3. Promote wider access to innovations and advance further research and development by others
4. Provide a set period of protection
5. Provide competitive advantage
6.Provide a number of competitive advantages for their owners. For example: give the owner the
right to determine who can use the IP and how it can be used.
7.Can provide an extremely valuable bargaining tool and in most cases can be sold for financial
gain.
8.May help their owner compete on the basis of the reputation associated with a product rather
than on price alone.
9.Provide the owners with a number of options in the event that the owner cannot afford to
manufacture the IP, or position themselves competitively in all potential markets. The most
common way of commercialising IP is through licences.
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INDUSTRIAL PROPERTY - PATENTS FOR INVENTIONS,
TRADEMARKS, SERVICE MARKS, COMMERCIAL NAMES,
INDUSTRIAL DESIGNS, GEOGRAPHICAL INDICATIONS AND
PROTECTION AGAINST UNFAIR COMPETITION
EXAMPLES OF PATENTS

•The First
Telephone,
patented by
Alexander Graham
Bell in 1876.
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A patent is an exclusive right granted for an invention, which is
a product or a process that provides a new way of doing
something, or offers a new technical solution to a problem.

The patent provides protection for the owner, which gives

him/her the right to exclude others from making, using,
exercising, disposing of the invention, offering to dispose, or
importing the invention.

In relation to patentability, the concept of invention generally

involves some form of technological progress!
 WHAT IS A PATENT?
• Section 1 of the Act: a patent is “a certificate in the prescribed form to
the effect that a patent for an invention has been granted in the
Republic”.
• All patents are registered with the Registrar of Patents at CIPC
(Companies and Intellectual Property Commission).
• Details of inventions, along with specifications, agreements and
licences, are kept in a Patent Register (s 10) which can be inspected
subject to certain conditions (s 12) and recorded in a periodic Patent
Journal after acceptance (s 14).

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 WHAT CAN BE PATENTED?
• S25(2) – States that the following shall NOT be an invention for the
purposes of this Act - anything which consists of:
• a discovery;
• a scientific theory;
• a mathematical method;
• a literary, dramatic, musical or artistic work or any other aesthetic creation;
• a scheme, rule or method for performing a mental act, playing a game or
doing business;
• a program for a computer; or
• the presentation of information
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 WHAT CAN BE PATENTED?
• FURTHER EXCLUSIONS:

• S25(4) A patent shall not be granted—

• for an invention the publication or exploitation of which would be generally expected to encourage
offensive or immoral behaviour OR
• for any variety of animal or plant or any essentially biological process for the production of animals or
plants, not being a micro-biological process or the product of such a process

• MEDICAL EXCLUSION:

• S25(11) states that:

• An invention of a method of treatment of the human or animal body by surgery or therapy or of
diagnosis practised on the human or animal body shall be deemed not to be capable of being used or
applied in trade or industry or agriculture

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 WHAT CAN BE PATENTED?
•Section 25 of the Act
•The invention must be new, in the sense that it is
not “state of the art” at the time that it is claimed
as a new invention (s 25(5)).
•Meaning of “state of the art” – something that
already exists for use by the public in oral or
written description (s 25(6)).
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 THE EFFECT OF A PATENT

• The patentee (owner of the patent) has the right, for the duration of the
patent, to exclude other persons from making, using, exercising,
disposing or offering to dispose of, or importing the invention, so that
he or she can enjoy the whole profit and advantage of the invention (s
45).
• A patent shall, unless otherwise stated in the Act, subsists for 20 years
from date of application to CIPC, and can be subject to renewal upon
payment of prescribed fees (s 46). A patent can also be restored where
it has lapsed in the same manner (s 47).

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 WHAT ACTIONS WILL AMOUNT TO INFRINGEMENT?

S45 deals with Effects of patent

S45(1) states that:

The effect of a patent shall be to grant to the patentee in the Republic,

subject to the provisions of this Act,
For the duration of the patent, the right to exclude other persons from
making, using, exercising, disposing or offering to dispose of, or importing
the invention,
So that he or she shall have and enjoy the whole profit and advantage
accruing by reason of the invention
Patents for pharmaceutical products
Recommended Reading:
Sekalala et al. “Decolonising human rights: how intellectual property laws result in unequal access to the
COVID-19 vaccine” 2021 BMJ Global Health

Vanni “On Intellectual Property Rights, Access to Medicines and Vaccine Imperialism” 2021 TWAILR:
Reflections #32/2021

Hoen et al. “Medicine procurement and the use of flexibilities in the Agreement on Trade-Related Aspects of
Intellectual Property Rights, 2001–2016” 2018 Bull World Health Organ.
Patents for pharmaceutical products:

 HIV/AIDS crisis in the late nineties made the potentially negative impact of patents on access to
medication clear. At that time, it was believed that 40 million people were infected with HIV in the
developing world; 24.5 million of them lived in sub-Saharan Africa— and only one in a thousand had
access to the antiretroviral medicines (ARVs) used to treat HIV. Over 8000 people died of HIV/AIDS
daily in the developing world.

 ARV medicines patent protection meant that even when Indian generic companies started to produce
generic low-priced ARVs in the late nineties, many people living with HIV in other countries where those
products were patented could not gain access to them.

 Civil society organisations and treatment activists confronted the WTO Ministerial Conference in Seattle
with demonstrations demanding action to introduce greater flexibility into the body of international patent
rules to safeguard public health.

 In April 2001, Boniface Chidyausiku of Zimbabwe who was the chair of the TRIPS Council, the
governing body of the TRIPS Agreement, proposed a special session on access to medicines. The chair
stressed that the WTO could no longer ignore an issue that was being actively debated outside the
WTO but not within it.

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 In November 2001 the WTO Ministerial Conference in Doha adopts the Declaration on TRIPS and Public
Health.

 ‘Doha Declaration’ confirmed the primacy of public health in intellectual property legislation, clarified
certain TRIPS flexibilities, and proposed that two other flexibilities be created.

 Paragraph 4 of the Doha Decleration provides that:

“We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to
protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that
the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’
right to protect public health and, in particular, to promote access to medicines for all.”

 Compulsory licensing and public non-commercial use?

A compulsory licence allows the use of a patent without the consent of the patent holder against the payment
of a reasonable royalty.

 Compulsory license can be granted following request, for example, from a generic manufacturer who has
failed to obtain consent from the patent holder to use the patent.

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Neo-Colonialism and IP Law?
Sekalala et al. notes that:

“Global IP rights, whether adopted in accordance with TRIPS, or subsequent bilateral and multilateral agreements,
are part of a wider legal system which facilitates global neocolonialism.”

Who benefits from IP law and has the TRIPS flexibilities worked?

Vanni: “These countries [from the global north] are also blocking the TRIPS waiver proposal put forward by South Africa
and India at the WTO despite being supported by 57 mostly developing countries. The waiver proposal seeks to
temporarily postpone certain provisions of the TRIPS Agreement for treating, containing and preventing the coronavirus,
but only until widespread vaccination and immunity are achieved.”

TRIPS Flexibilities v TRIPS Waiver?

The New South African IP Policy
 Aaron Motsoaledi, the Minister of Health says that:

“When the TRIPS flexibility was agreed upon in Doha, it was agreed that all the companies that
manufacture originator drugs through research are given a 20 year patent period, meaning after 20 years
anybody who has the skills could manufacture and that drug is going to be called a generic. Now the
problem is that that 20 years expired round about 2015. At the expiry of the 20 years, instead of generics
following and drugs getting cheaper, the companies do what you call ever-greening - you take that drug,
you just change one molecule and apply for a patent for a new drug.”

 Rob Davies, Minister of Trade and Industry acknowledges that ever-greening has occurred. He explains
the abuse of law as following:

“When you register a patent, you get 20 years exclusive right to use that technology or patent...if you make
a very small change that is not discernible to the registration process and register again, you get 40 years.”

 Calls for a "system of substantive examination" of patents, something that currently does not exist
because the Companies and Intellectual Property Commission (CIPC) does not have the capacity to do
this.

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 South Africa introduces the “INTELLECTUAL PROPERTY POLICY OF THE REPUBLIC OF SOUTH
AFRICA PHASE I”

 This policy document aims to guide government action in the reform of IP law.

 Currently Section 34 of the Patents Act 57 of 1978 (Patents Act) read together with Regulations 40 and
41 of the Patent Regulations, 1978 (Patent Regulations) have the effect that the CIPC only conducts
examination in relation to the formalities of the application. Hence, South Africa employs a so-called
depository system.

 Policy document provides that:

“The examination of patent applications within the sovereign territory of South Africa is a key component of
an evolved IP ecosystem. This examination, or “substantive search and examination” is of great benefit to
holders and users of IP, in that it provides a robust framework for the awarding and management of IP.
Capacity constraints in South Africa, however, require a phased, strategic approach in line with national
developmental goals. This approach is explicitly encouraged by WIPO and other multilateral bodies
engaged in regulating global IP norms.”

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