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Publish or perish – the phrase which arguably dictates the sustainability and career advancement of academia. What is however often forgotten is that in the quest for publication, researchers and institutions often neglect consideration for intellectual property protection of their inventions. The phrase should accordingly be expanded to “patent before you publish or perish”.

A recent study conducted by the research organisation Trade & Industrial Policy Strategies (TIPS) suggests that a narrow emphasis on commodification of intellectual property rights seems likely to hinder knowledge sharing between researchers, innovators and cultural workers through publications or incorporation of traditional designs in national cultural products. In addition, TIPS agrees with Ncube et al. (2014) that the recent implementation of the Intellectual Property Rights from Publicly Financed Research and Development (IP-PFRD) Act of 2008 has contributed to this end by burdening researchers and institutions with administrative duties and perceived pressure to protect new knowledge.

They further suggest that the legal framework for patents in South Africa displays a weakness in that “the pressure on universities and other publicly funded researchers to obtain intellectual property rights as a precursor to commercialising knowledge could have the unintended consequence of slowing down research and making it less, not more, accessible for developmental purposes”.

If you, however, look at statistics relating to publication of academic papers by South African universities, it paints a picture of a relatively high publication rate. The 2013 report on South African Science and Technology Indicators by the National Advisory Council on Innovation indicated that 37,237 high impact journal publications occurred between 2008 and 2012. (This number was taken from the universities which make up about 88% of the total South African university publications.)

Interestingly, the document further reports that the number of high impact journal publications by South Africans increased at an average of 10% per year over the 2003 – 2012 period, representing an average growth of around 624 publications per year. This growth is much more rapid than the world average.

In this respect it is clear that the age old notion of “publish or perish” remains significant and that research in South Africa has remained active and well at least during this period, notwithstanding the implementation of the IP-PFRD Act.

Against this background it is interesting to note that according to the Companies and Intellectual Property Commission only around 600 patent applications have been filed by the aforementioned universities between 2008 and 2012. Investigation into how many of these 37,237 publications included inventions which could have been subject to patent protection would certainly be interesting. Clearly however the number of publications far outweighs the number of patent applications and it is accordingly likely that a number of potential inventions were disclosed without the prior filing of patent applications.

The writer has certainly come across a number of instances in which prior publication, whether by brief advertisement, presentation at congresses or full publication, have destroyed the novelty of possibly valuable inventions, leading to the loss of potential protection by way of patents. To quantify the prospective income that could possibly have been derived from such “patents” would certainly be even more interesting!

The debate around the value and effectiveness of the patent system aside, the fact remains that publication, duly authorised by the rightful holders of an invention, prior to filing a patent application irrevocably destroys potential patent protection – not only in South Africa, but worldwide!

The South African patent system provides a useful manner in which to reserve the right to protect potential inventions by way of a provisional patent application. The cost for preparing and filing a provisional patent application is furthermore relatively low and can be done without a substantial delay once an invention is ripe for publication. Such provisional patent application provides the inventor with a period of 12 months, from the date of filing, within which to conduct the necessary investigations into the potential of the invention in terms of both the validity and commercial prospects thereof. Should these investigations indicate that the patent application is not worthwhile pursuing further, the application may simply be abandoned.

The schematic figures below illustrate a philanthropic approach to research and development versus intellectual property protection approach. The philanthropic approach effectively results in a donation of your invention to the public and although admirable, such approach cannot generate any income and is simply not sustainable.

Guarantees of commercial success and/or valid patents are difficult to predict, but a certain guarantee is that publication without a prior patent application for such invention can never lead to any patent protection resulting in a loss of potential income.

Researchers, inventors and the like are therefore urged to patent before they publish or perish.

Date: May, 2015

Fredo Ströh

Patent Attorney
Tel +27 10 510 3493

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