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No. 31745
Act No. 51, 2008
GOVERNMENT GAZETTE, 22 DECEMBER 2008
INTELLECTUAL PROPERTY RIGHTS FROM PUBLICLY
FINANCED RESEARCH AND DEVELOPMENT ACT, 2008
(g) where necessary, the State may use the results of publicly financed research
and development and the attendant intellectual property in the interest of the
people of the Republic.
Application of Act
3. (1) This Act applies to intellectual property emanating from publicly financed 5
research and development.
(2) (a) Subject to paragraph (b), the Minister may, in addition to the institutions to
which this Act applies, by notice in the Gazette, identify any other institution to which
this Act applies if he or she is satisfied that the institution may develop intellectual
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property from publicly financed research and development.
(b) Any identification contemplated in paragraph (a) must be done with the
concurrence of the Minister responsible for the institution concerned.
Choice in respect of intellectual property
4. (1) Subject to section 15(2), intellectual property emanating from publicly financed
research and development shall be owned by the recipient.
(2) A recipient that prefers not to retain ownership in its intellectual property or not to
obtain statutory protection for the intellectual property must—
(a) make the choice in accordance with the regulations and any guidelines
published by NIPMO by notice in the Gazette; and
(b) within the period set out in section 5(1)(e), notify NIPMO of the decision and
the reasons therefor.
(3) NIPMO may, within the prescribed period, after considering the reasons provided
by the recipient in terms of subsection (2)(b) and any prejudice that may be suffered by
the State if no statutory protection for the intellectual property is obtained, acquire
ownership in the intellectual property and, where applicable, obtain statutory protection
for the intellectual property.
(4) (a) Should NIPMO decide not to acquire ownership in the intellectual property in
terms of subsection (3), NIPMO must, in writing, notify the recipient of its decision.
(b) Subject to the reasons given in terms of subsection (2)(b), and on notification
contemplated in paragraph (a), the recipient must give the intellectual property creator
the option to acquire ownership in the intellectual property and to obtain statutory
protection for the intellectual property, provided that in the case where a private entity
or organisation had provided some funding, such private entity or organisation shall
subject to section 10 first be offered such option before the intellectual property creator.
Management obligations and disclosure duties
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5. (1) A recipient must—
(a) put in place mechanisms for the identification, protection, development,
management of intellectual property, intellectual property transactions and,
where applicable, the commercialisation of intellectual property and appro40
priate capacity-building relating thereto;
(b) provide effective and practical measures and procedures for the disclosure of
intellectual property and ensure that intellectual property emanating from any
publicly financed research and development is appropriately protected before
results of such research and development are published or publicly disclosed
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by other means;
(c) ensure that personnel involved with the research and development make a
disclosure to it within 90 days or such longer period as may be prescribed, of
identification by such personnel of possible intellectual property and before
the intellectual property is made public;
(d) assess the intellectual property to determine whether it merits statutory 50
protection and, where appropriate, apply for and use best efforts to obtain
statutory protection in its name;