Strangers in the night: a comparative study on the socio-legal difficulties of importing America’s Bayh-Dole legislation to South African universities

In 2008, the South African parliament passed the Intellectual Property Rights from Publicly Financed Research and Development Act, which came into effect on 2 August 2010. In doing so, South Africa sought to replicate the apparent success of the United States of America’s Bayh-Dole legislation. One of the express objectives of the Bayh-Dole Act is the increase in university-industry collaborations. Whilst U-I has not been expressly stated as a primary aim of the IPR Act, the legislative history has demonstrated that issues relating to U-I have permeated the political landscape from the inception of the IPR Act. It is therefore relevant - although hitherto unexplored - to consider whether South Africa’s IPR Act might have the same supposedly positive effect on U-I experienced by the Bayh-Dole Act. In answering this question, this paper chooses to focus on two factors which may be considered particularly pertinent in light of South Africa’s recent socio-legal landscape, namely (a) the lack of substantive patent examinations, and (b) government investment in higher education. To this end, it will be argued that the IPR Act will only serve to have a negative effect on U-I, if any at all.