GLOBAL CONGRESS ON IP IN THE PUBLIC INTEREST, DAY 1

Today is the opening of the 3^rd Annual GlobalCongress on IP and the Public Interest, in beautiful Cape Town, South Africa. After an appropriate moment of silence to recognize the passing of one of this (and last) century’s greatest political leaders, Nelson Mandela, the conference moved straight into issues of copyright and patents as public goods, and whether they can benefit the public interest.

Beautiful Cape Town
25-30 degrees in summer (sorry Europe!)

[[NOTE FROM THE AUTHOR - before reading on, please see the comments, in which I correct that the arguments set forth by Prof. Ikechi are NOT his actual views!! - In fact his views are best found in this new book, which is available in full and free on-line here (with many thanks for that, by the way)]]

In one morning session, Ikechi Mgbeoji (Associate Professor at Osgoode Hall Law School, York University, Toronto) asked the question whether it is feasible to have a functioning/examining patent office in Africa. Instead, he suggestions, perhaps we can rely on “Rational Ignorance” – i.e., you allow patents simply to “happen” (issue) because it’s too expensive to have decent in-house patent examination.  He contended that “bad patents aren’t really as bad as people say. If people think they are bad, they can always go to court. It’s better to have a ‘dirty system’ that stamps patents right away, with a post-grant system, than to spend millions on a functioning patent system.” With all due respect to Prof. Ikechi, this Leo could hardly contain his anxiety at these suggestions (although nearby attendees must have been amused at all the fidgeting and gasping).

“Rational ignorance” as suggested would be disastrous for the commons. Currently, the burden is on the inventor to prove that his/her invention is worth patent exclusivity. Shifting the burden to the general public to prove that a granted patent should not have been granted (though post-grant patent office systems or through court proceedings) removes a hugely important safeguard and essentially means that the vast majority of the public will be at the mercy of such patents. Most (surely over 99%) of the general public will not have the means or the time to go through such burdensome proceedings, and will never try. Given the complexity of patents generally (only lawyers understand them, and even judges often misinterpret or mishandle them), it is highly risky to challenge one in court. So the result will be many (most?) patents that discourage competition and should never have existed in the first place.

In fact, it is not impossible for African countries to examine patents. Kenya has a functional patent examination office (KIPI), and examines many dozens of patents each year in-house with roughly 10-12 qualified examiners. South Africa has been heavily leaning toward instituting an examination system within the next few years (and this Leo strongly supports such a move). And for countries that receive less than a handful of applications per year (e.g., Botswana typically receives less than five), ARIPO is available to conduct the search and examination.

Removing patent examination would destroy a major saving grace that patents have over copyright.  Currently, the “default” of copyright is in protection, and a copyright holder needs to actively give away their rights (e.g., through licensing). For patents (i.e., inventions), thankfully, the default is in donation to the public. Only by significant effort can the potential patentee lock down his/her rights. Changing this situation would be done only at great peril to African economies.  The cost of a patent examination system is well worth the benefit to society – i.e., the protection of the commons.

This was first posted on Afro-IP.

CLIPDC AND GLOBAL ENTREPRENEURSHIP FROM (AMERICAN) EXPERTS

Perhaps the most exciting session of the CLIPDC conference (which is now finished) in Durban, SA, was titled “Global entrepreneurs” and featured Prof. Robert (Bob) Langer from the Massachusetts Institute of Technology (MIT), Alex Klibanov (also from MIT), and Dennis Liotta (from Emory University in Alabama). For the non-scientist readers, Bob Langer is equivalent to Beyonce in music or Steve Jobs in business – a true rock star. Alex and Dennis are also quite famous in the science circles. [Sadly, Bob and Alex could only join by video link, so this once-scientist-Leo didn’t have the privilege of meeting them in person.]

Great Dome at MIT -
watch out for firetrucks and police cars on top

Bob is an inventor on over 800 patents (yes, that’s 800 patents), and has well over 1,000 publications to his name, so he knows something about innovation and intellectual property (i.e., patent) systems. Bob’s recommendation to Developing Countries is to start building the IPR ecosystem, while planning for the future. Implement a good patent system, which will be attractive to investors, will lure Venture Capitalists, and which will reward innovation. Bob used the oft-cited example of Silicon Valley, which, he noted, has been developing over 70-80 years.

Similarly, Alex suggested a multi-step process for encouraging innovation via IPR. First, identify unmet needs that are specific to the Developing Country. This will reduce the likelihood that the innovators are competing with large multinational corporations with nearly unlimited resources. Second, apply technology to the need, whether it is your own technology or that of others. [This Leo finds that innovators are frequently surprised to learn that patents from Developed Countries are available online for free, and that they are supposed to thoroughly describe the state of the art at the time of publication.]    Third, businesses/innovators should have an exit strategy. Finally, work hard and keep pushing, and good things will happen. Sounds great, and works well in America.

One complication is that global IP systems have been undergoing rapid evolution as pro-protection and pro-open movements clash and (sometimes) try to find common ground. It’s difficult to plan for the future when one cannot guess what global IPR regimes will look like in 20-30 years. Historically, such discussions have been spearheaded by developed countries (even today this is true, given the recent revelations about the TPP negotiations). The rise of BRICS countries has altered this somewhat; Indian court decisions about pharmaceuticals and Brazilian policies regarding genetic resources are two examples of BRICS beginning to redefine the conversation.

There are two ways to interpret Bob and Alex’s suggestions: (1) “start now to lay the foundation for a strong IPR regime, like the one in the US and Europe which has worked so well”; or (2) “start now to determine what sort of IPR regime would function best in Africa, providing suitable incentive for innovation yet accounting for local needs and situations.”

One fascinating topic raised by the three scientists relates to creating incentives for entrepreneurship and innovation within universities. Apparently, MIT owns all of the IP generated by professors, but gives the professors 28% of all royalties generated by the IP.  Also, if professors wish to create a spin-off company from their inventions, MIT licenses those inventions to the spin-off at zero initial cost. Instead of charging a royalty, MIT takes an equity stake in the company.

Even more interesting is that all professors at MIT are allowed and encouraged to devote one day per week to “extracurricular activities,” which may be of a public service nature or of a private industry nature.  Clearly MIT makes great effort to encourage creativity, entrepreneurship, and diversity among faculty.

Are there any African universities that go to such lengths in encouraging innovation? Readers are encouraged to chime in…

This was first posted on Afro-IP.

CLIPDC: A CONFERENCE OF CONTRADICTIONS

From Monday to Wednesday of this week, this Leo has been at the Creating and Leveraging IP in Developing Countries(CLIPDC) conference in Durban, SA. This post will provide some general observations of the conference. Future posts will focus more on conference content.

Durban: a beach and
a World Cup football stadium

Why this conference, in this place, at this time? The major organizers are the Department of Science and Technology (DST), the Companies and IP Commission (CIPC, which is part of the Department of Trade and Industry), and the National IP Management Office (NIPMO), all SA Government organizations. It seems no small coincidence that the SA "Draft National Policy on IP, 2013" was launched only two months ago, and indeed the Draft Policy is a major topic at CLIPDC. Also, CLIPDC is being used as a forum to launch an "IP Trade Portal", which functions as a sort of matchmaking service for technologists and investors. It is not exactly clear why CLIPDC is in Durban specifically, although certainly the views of the ocean are worth the journey...

Who's here? The list of speakers is impressive. Nevertheless, quite honestly, most of the speakers are American or European. South Africa is represented to some degree, but the non-South African voice is all but absent. Frustratingly (at least to this Leo), a representative from ARIPO was scheduled to be present and speaking, but was reportedly unable to attend on account of issues with immigration and obtaining a visa. Consider also that SA seems to have little interest in joining ARIPO (see here, which reports that SA "is counted as a potential member in the near future" but closer look shows that this page was last updated in 2004...). And how many national or regional African patent offices outside SA are represented at the conference? Zero. Even the audience contains only a few non-South Africans from the Continent. It's hard not to reach the conclusion that CLIPDC is not actually interested in listening to perspectives from developing countries in Africa.

On the other hand BRICS countries are well represented. An impressive video-linked session provided presentations from representatives of all of the BRICS patent offices.

What are we talking about? The topics over these three days have been heavily [nay, almost exclusively] related to patents. Other forms of IP are mentioned in passing or in the questions raised from the audience, but are quickly discussed before returning to patents and innovation. The focus on patents can be understood, perhaps, when one considers the non-government sponsors, which include Big Pharma (Pfizer), Health and Personal Products (Philips), the American IP Law Association (AIPLA), an American consulting firm (Knowles IP Strategies), and a local law firm (Hahn & Hahn).

The patent-heavy and pro-protection side of the conversations have been somewhat balanced by the presence of representatives from MSF (Doctors Without Borders), University of Cape Town, WIPO, and even the DST itself. Refreshingly, these speakers and delegates have mentioned access to medicines, open access to copyrighted works, protection from biopiracy, and the like.

The SA government has clearly put a lot of resources into this event and into IP generally. The Ministers from the Ministry of Science and Technology and the Ministry of Trade and Industry attended and spoke at CLIPDC on Monday [there seems to be some tension between these Ministries, but politics and social issues in SA are too complicated for this Leo to comprehend]. It's nice to see so much discussion about IP in SA, although it is also clear that the rest of Africa is being left out of the discussion. 

This was first posted on Afro-IP.

WHY AREN'T THERE CMOS FOR SOFTWARE?

Most countries have a copyright law that provides for Collective Management Organizations. These are typically non-profit or state-run organizations that act on behalf of copyright holder members. The CMO collects royalties from copyright users, usually by issuing fee-based licenses that give users access to a broad selection of copyrighted works.

We are stronger together than apart...
The Fall of Poland, Jan Matejko, 1866

The Nigerian Copyright Act provides a good definition of a CMO: “an association of copyright owners which has as its principal objectives the negotiating and granting of license, collecting and distributing of royalties in respect of copyright works.”

Computer source code is subject to copyright, so programmers constitute a class of "copyright owners." Why, then, has this Leo never heard of a CMO for software developers?

CMOs are particularly common for music-related copyrights. In Kenya, there are three such CMOs, one each representing: music authors/publishers; sound recording producers/owners; and music performers.

Music is ideal for a CMO because users typically use a wide variety of copyrighted works, but each work is used relatively infrequently. For example, a retail business may have background music provided by a radio playing a wide variety of music from many musicians. Thus a typical user owes a large number of small royalty payments to a large number of authors. The CMO enhances efficiency by centralizing collection of such royalties.

On the face of it, software seems quite different. Most people typically use a relatively small number of software programs, and use them quite frequently. There is also no equivalent of radio (i.e., a legitimate source of entirely freely distributed music) for software. The standard model is for users to purchase an ongoing license to use software, and the user receives a personal or business copy for such use.

Nevertheless, might there be some similarities between software distribution and music distribution? Or, might a total re-design of the current software distribution model - a re-design that looks more like music distribution and makes use of CMOs - make sense for the software industry?

Some software developer companies (particularly those making mobile phone apps) have literally hundreds of independent pieces of software on offer, much like some musicians have vast repertoires of music. Furthermore, cloud computing is already changing the standard model of software distribution, by allowing users to access programs and data stored on remote servers (rather than being stored locally).

Perhaps a pizza or chicken restaurant would benefit from having access to thousands of video games sourced from hundreds of developers, all of which is licensed for a set fee from a CMO. Or perhaps individuals could buy a license from a CMO to gain access to thousands of apps for their mobile phone. Or perhaps businesses could buy a license from a CMO and gain access to hundreds of types of business software from different providers.

Readers, do you know of any CMOs (or similar collective rights organizations) for software?

This was first posted on Afro-IP.

SAFARICOM'S THIN LINE

Just the other day, this Leo caught himself telling a colleague, "Let me MPesa you the money". Immediately, a blog post was born.

Holding the line between popular and generic
(The Thin Red Line 1854 Richard Simkin)

Trademarks, unlike copyrights and patents, are granted primarily as a means for consumer protection. Valid and enforceable trademarks allow consumers to be more confident in the source of that product. If a trademark fails to identify the source, then it fails its primary function, and should not continue to receive trademark status.

This is the rationale for the revocation of trademarks that become "generic". A good example is the previously trademarked term "thermos". A thermos was once a product of a single company, but the term became generic as people referred to all similar goods (regardless of manufacturer) as thermoses. Once generic, the term no longer qualified for trademark protection.

A common way for trademarks to become generic is when they are commonly used as verbs. Xerox (the company) fought hard to stop people from using "xerox" as a verb (e.g., "I'm going to xerox this document"). When used as a verb, it's easy to see that a trademark can be used generically. One can imagine "xeroxing" a document on a Ricoh photocopier, for example. This situation is deadly to a trademark.

In the case of MPesa, it is extremely (and should be worryingly, at least to Safaricom) common for people to use "MPesa" as a verb, as exemplified above. This Leo has even heard people say they will MPesa some money over Airtel, a competitor service. Such use of the trademark is improper and diminishes the ability of the trademark to indicate a product source.

The proper use of a trademark is as an adjective - e.g., "I'm going to send you money using the MPesa mobile money system." Quite a mouthful, but it clearly indicates the source of the product.

Brands that pioneer a product/service such as MPesa must always walk the thin line between being popular and becoming generic. 

This was first posted on Afro-IP.

APPROACHING A SOFTWARE PATENT CLIFF?

“Is software patentable in Kenya?” This was a question posed at a conference held in Nairobi last year. In this Leo’s opinion, the answer is “yes”, primarily because of a change in the Kenyan patent law in 2001. The old law explicitely excluded software from patentable subject matter, but the revised law conspicuously omitted the exclusion (conspicuous because other exclusions were maintained). If it was once prohibited, but is no longer, then it must be allowed, right?

driving buffalo over the cliff

charles marion russell 

“Should software be patentable in Kenya?” The same conference also posed this question, which is decidedly more difficult to answer. This post focuses on one aspect of the question, namely, whether the current system is likely to replicate the mess that patents have made in the software industry in the United States.

Software patents in the US are hard to define, are numerous in number, and are the subject of endless debates about patentable subject matter. The US courts have completely changed their treatment of such patents at least three times, making it difficult to know at any given time whether a patent is valid or invalid. More problematic is the contention that, during the ‘90s and 2000s the USPTO issued a large number of broad patents that cover many of the most basic online or mobile operations. Furthermore, such patents are frequently categorized as “weak” patents – i.e., patents that barely pass (or probably do not pass) a requirement for patentability such as non-obviousness. Nevertheless, or as a result, such patents are often used by Non-Practicing Entities (i.e., “patent trolls”) to sue large numbers of defendants, confident in the belief that most defendants will prefer to settle out of court for just less than it will cost to litigate.

Is Kenya heading in this direct? The potential is serious for two reasons. The first reason is the importance of the software industry to Kenya. The phenomenal growth of the industry in the last 5 years is unmatched in any other sector, and ICT offers substantial opportunities for high-paying jobs and entrepreneurship.

The second reason is the existence in Kenyan IP law of Utility Model Certificates. “Normal” patents are granted for inventions that are novel, useful, and, critically, non-obvious (or, if you are in Europe, involve an inventive step). Thus any patent system can theoretically weed out “weak” patents before they even become patents simply by rigorously enforcing the rules for granting patents. Weak patents tend to be for obvious inventions, so enforcing the non-obviousness criteria should limit their number.

Utility Model Certificates, on the other hand, are granted for inventions that are merely novel (and useful) – there is no requirement for non-obviousness. Almost by default, then, they are granted for obvious inventions; if the invention is non-obvious the applicant is more likely to file for a regular patent. A Utility Model certificate provides exclusionary rights for “only” 10 years. In the software industry, 10 years is still much longer than the useful lifespan of most inventions.

So, by design of the law, Kenya is destined to have a collection of intellectual property rights granted to novel but obvious inventions, including inventions in software. These are key elements in building a system ripe for exploitation by Non-Practicing Entities.

To date, the number of software-based utility model (or patent) applications filed in Kenya is very low. Nevertheless it took decades for the US to reach its current position, so a bit of crystal ball gazing may be valuable.

Incidentally, the IPKat recently posted on whether Patent Trolls are universal, and observed that they seem to be largely a US phenomenon. This Leo has a similar experience – virtually every time I ask a Kenyan audience whether they have heard of Trolls or NPEs, not more than one or two hands are raised. Let us hope it stays that way!

This was first posted on Afro-IP.

DIARY OF A PATENT LAWYER IN KENYA: A CURIOUS RESPONSE

This Nairobi-based Leo is turning to blogging as a necessary distraction from the tragedy unfolding in Nairobi, but his prayers are with those affected.

Recently this Leo participated in helping a 14-year old Kenyan (“our inventor”) attempt to secure IP rights after he had designed a system useful in rearing domestic livestock as well as in wildlife conservation. At our inventor’s request, and with the guidance of a local wildlife conservation group, we prepared and filed a Utility Model Certificate application. So far, the filing has been the beginning of a very curious experience.

Pondering a curious response to innovation
(Curiosity, Patricia Pushaw)

Around the same time that we filed the application, it became clear that many other people had been installing very similar systems. In fact, at least one organization seems to have been installing quite a number of similar systems. It should be noted that aspects of our inventor’s system had been widely published (with much fanfare) prior to our filing, so it is very possible that such similar systems were in fact copies, inspired by the prior publication.

When our inventor and the supporting wildlife conservation group approached those making similar installations, the response ranged from dismissive to downright hostile. People angrily replied in two ways: “how can you patent something that will significantly help wildlife conservation?” and/or “this invention cannot be patented because it’s been known for years.” Both responses are irritating, albeit for different reasons.

Claiming that something shouldn’t be patented because it has virtuous applications is not new but it’s also not fair. Kenyan patent law doesn’t exclude humanitarian (animalitarian?) inventions, so why should we deny such reward to the intellectual efforts of our inventor? In any case, animal conservation has become quite the industry, particularly amongst NGOs and eco-friendly tourist services, so why not encourage innovation just as it’s encouraged in other industries?

The second response, that the invention cannot be patented because it was known previously, is irritating for its arrogance. It brings out the school-yard immaturity in me, instilling a burning desire to retort “Oh, yeah? Says who?!” Seriously, though, any patent lawyer (including this one) would have done a prior art search and would have known what sort of prior art devices were in existence as s/he wrote the application. Armed with the search results, it is the lawyer’s job to draft an application that will not be anticipated by the art. Of course there is never a guarantee that an application will become a patent, but a well-drafted application can often overcome even the most damning (i.e., closely related) art.

Unfortunately, such objections have significantly discouraged our inventor, although perhaps the experience is merely a good introduction for a teenager to the cutthroat world of adulthood. How will this all turn out?  It may take years to know, considering that the Kenyan patent office will take at least 18 months to issue any Utility Model Certificate. When/if a Certificate is issued, then it is up to our inventor to decide how/whether he wants to enforce. In any case, this Leo only hopes that the experience will not discourage our inventor from spending his long future ahead inventing and creating.

This was first posted on Afro-IP.