LML4801
Assignment 2 Semester 2 2024
Unique Number:
Due Date: 18 September 2024
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
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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.
Crown Use
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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