Patent Portfolio Management In South African Tech Startups.
Patent Portfolio Management in South African Tech Startups
Patent portfolio management involves strategically creating, protecting, and enforcing patents to maximize a startup’s competitive advantage. In South Africa, this is especially important because the patent system is largely non-examining, meaning patents are granted without substantive review of novelty or inventive step. This creates opportunities but also risks for startups.
Key areas include:
Ownership and entitlement
Patent validity and claim drafting
Litigation and enforcement strategies
Strategic portfolio building for investment and commercialization
1. Regents of the University of California v Eurolab (2025)
Facts:
The University of California (UC) and its licensee claimed patent rights to a cancer drug and sued a South African generic manufacturer, Eurolab, for infringement.
Judicial Interpretation:
The court focused on entitlement at the time of filing. UC had not properly acquired the rights from the inventors before filing the patent.
Holding:
The patent was deemed unenforceable against Eurolab, and the interim injunction was denied.
Key Takeaway:
Startups must ensure clear ownership and assignments before filing. Gaps in assignment can invalidate enforcement efforts.
2. Villa Crop Protection v Bayer (2022–2023)
Facts:
Bayer sued Villa Crop for infringing a spirotetramat patent. Villa Crop sought to add the defense of “unclean hands” to challenge Bayer’s enforcement.
Judicial Interpretation:
The court allowed amendment of pleadings to include equitable defenses. It recognized that patents cannot be enforced in bad faith.
Key Takeaway:
Patent portfolio managers should anticipate common law and equitable defenses, particularly when enforcing patents against competitors.
3. Bayer v Dr Reddy’s Laboratories (2021–2022)
Facts:
Bayer sued Dr Reddy’s for infringing a patent on a drug formulation. Dr Reddy’s argued the patent was invalid and claimed no inventive step.
Judicial Interpretation:
The court emphasized that interim injunctions rely on prima facie rights rather than final determination of validity.
Key Takeaway:
Startups should ensure their portfolio is litigation-ready, with documented evidence of validity and enforceability for injunctions or investor confidence.
4. Bayer v New Clicks South Africa (2023)
Facts:
Similar to Dr Reddy’s, Bayer enforced a pharmaceutical patent. The dispute involved claim construction and interpretation under South Africa’s non-examining system.
Judicial Interpretation:
Courts carefully scrutinized how claims were drafted, showing that claim clarity and alignment with local law are critical for enforceability.
Key Takeaway:
Startups should draft precise claims to minimize challenges to patent validity.
5. Keen v OHMS Innovations (2023)
Facts:
Dispute arose over competing rights to a patent already granted. The challenge concerned who was legally entitled to the patent.
Judicial Interpretation:
The Commissioner confirmed that disputes over entitlement can affect enforcement even after grant.
Key Takeaway:
Clear contractual assignments with employees, contractors, and collaborators are essential to prevent disputes that weaken a portfolio.
6. AI Inventorship and DABUS-style Patents (2021)
Facts:
Some South African startups filed patents listing AI as the inventor. Although South African law does not currently recognize AI as an inventor, the non-examining system allowed filing.
Judicial Interpretation:
This creates risk and uncertainty. If challenged, such patents may be invalidated due to improper inventorship.
Key Takeaway:
Startups using AI to generate inventions must carefully document human inventorship and AI involvement to avoid future litigation risk.
Strategic Recommendations for South African Tech Startups
Ownership and Assignment:
Ensure all patents have proper assignment from inventors at filing.
Portfolio Structuring:
Prioritize patents with commercial value and protect key innovations.
Claim Drafting:
Draft claims clearly to survive challenges in litigation.
Litigation Readiness:
Document novelty, inventive step, and enforcement history to defend interim injunctions.
Equitable Considerations:
Be aware of defenses like unclean hands when enforcing patents.
AI and Emerging Tech:
Maintain human inventorship documentation for AI-generated innovations.
Conclusion
Patent portfolio management in South African tech startups is not just filing patents; it involves strategic foresight, legal compliance, and litigation readiness. The cases above illustrate that entitlement, claim clarity, and equitable considerations are critical. Proper management strengthens enforceability, attracts investors, and protects a startup’s competitive edge in the technology market.
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