This project evaluates the state of innovation and patent protection for biotechnological inventions in South Africa as well as the relationship between innovation and intellectual property law. The potential and actual impact of patenting in South Africa’s biotechnological research and innovation continuum and the role of patent law in biotechnological innovation and sustainable development is accordingly studied. The goal is to align future South African patent law with national policy objectives for biotechnological development and accounting for potential impacts of patenting in the biotechnology industry. The justifications for patents are discussed, and a South African system of patent protection of biotechnological inventions which seeks to uphold the principles of advancing innovation in a fair and equitable manner for the benefit of all South Africans is advocated. It is argued that patents are tools with potential to affect technological innovation both positively and/or negatively in upstream and downstream research. Patent law can be used to promote innovation. However over-patenting, particularly bad or poor patents, may retard innovation, and result in the abuse of monopoly power. As time-limited patent monopolies on the use of an invention as claimed, are enclosures of common or public domain areas, the rewarding of patent monopoly rights should be justified in terms of a patents’ ability to increase innovation and should be in line with South African social needs, as well as international law. In this regard, this project discusses the South African biotechnology industry and the effect of patenting on innovation; is concerned with patent protection for biotechnological inventions and discusses the necessity of shaping patent protection of biotechnological inventions to be in line with principles of equity and innovation policy objectives; and concludes by providing policy and legal recommendations for biotechnological innovation in South Africa.
