LML4801
Assignment 2 Semester 2 2024
Unique #:
Due Date: 18 September 2024
Detailed solutions, explanations, workings
and references.
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, Patent Infringement and Defence Options for the South African Department
of Defence
In the given scenario, Dr. Williams has successfully filed a patent for a process that
blends plant or animal-derived oils with fossil fuels to create a fuel that reduces
CO2 emissions. The South African Department of Defence (DoD) is interested in
using this patented process to reduce its environmental impact and save taxpayer
money. However, the patent grants the holder exclusive rights under South African
law, meaning unauthorized use of the patented process could amount to patent
infringement under the Patents Act 57 of 1978.1
Licensing Option
The most straightforward solution for the DoD would be to negotiate a licensing
agreement with Saflying Company. A license would allow the DoD to use the
patented process in exchange for a licensing fee or royalties. Licensing agreements
can be structured to fit both parties' needs, potentially allowing the DoD to use the
process at a reduced cost or with favorable terms, given the public interest in
reducing CO2 emissions. This approach respects Saflying’s intellectual property
(IP) rights while allowing the DoD to achieve its objectives.
Compulsory Licensing
Should Saflying Company refuse to grant a license, the DoD might seek a
compulsory license under section 56 of the Patents Act. This allows the
government to obtain a license to use a patented invention without the consent of
the patent holder, provided that the patent holder is compensated fairly. Under
section 4(1)(f) of the Act, compulsory licenses can be granted in the public interest,
particularly in cases where a patent is required for the public good, such as
environmental protection.2 Given that the DoD’s use of the process aims to reduce
CO2 emissions and address climate change, a compelling argument could be
made that granting a compulsory license would serve the public interest.
1
Patents Act 57 of 1978.
2
Section 4(1)(f), Section 56, Section 78, and Section 81 of the Patents Act.
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