SAVE THE BUILDINGS!! OR, HOW TO AVOID DEMOLITION?

This blogger's office is about 500 m from a mall that was built about two years ago, existed for two years and had tenants, and then was demolished over the last month. The demolition was conducted by NEMA, the Kenyan environmental protection authority, because the building was built on riparian land (i.e., built on or near a river). Several buildings in Nairobi have been similarly demolished or are about to be demolished.

Southend Mall, no more.
Photo Credit: Margaret Maina

Recalling a popular campaign from the 80s to "Save the Whales", this blogger got to thinking about creative ways of saving such buildings. (Please note, however, that this blogger is not arguing that illegal buildings SHOULD be saved, but only wondering how to do it creatively.) Finally, inspiration hit during an IP Law lecture to 3rd year LLB students!

The Copyright Act in Kenya provides for moral rights, including the right to prevent a work from distortion, mutilation, or other modification if prejudicial to the author's honour or reputation. So, perhaps a building owner wishing to avoid demolition should commission an artist to create a mural on a wall of the building. Demolition of the building and, consequently, demolition of the mural, would certainly be mutilation of the work. (Although, would it be prejudicial to the author's reputation or honour?  Hmmm.....) Then the building owner can request the author to sue NEMA for an injunction to prevent demolition!

Of course, NEMA could just cut the wall out of the building and deliver it to the author, so it would need to be a very carefully selected work of art. For example, a mural of a river running under a building - the author could claim that the location of the work provides critical context for the understanding of the work, thereby preventing destruction of the entire building.

This blogger loves the rule of law, and does not wish to justify illegal buildings, but would love to test the limits of copyright law and hopes that someone out there will try this approach......

This was first posted on Afro-IP 

ANOTHER QUESTIONABLE AD CAMPAIGN FROM KFC

Regular readers will recall this bloggers post, here, about KFC's ad campaign that was certainly tasteless and flirted with consumer protection laws. Well, the marketing team at KFC is at it again, this time flirting with trademark law.

On a street in Nairobi can be seen an ad encouraging customers to "Come in your shorts and crocs", with a signboard a few dozen meters down the road that reads "We won't judge."

The word mark "Crocs" was submitted by Crocs, Inc., a Delaware Corporation, for trademark protection at the Kenyan Industrial Property Institute (search for "crocs" at this link for more info about the advertised marks) in 2011.

Photo credits: Abdulmalik Sugow

Photo credits: Abdulmalik Sugow

So, KFC is using the registered trademark of another company in a commercial activity - i.e., their advertising campaign. This is not per se infringement, but it raises some issues.

1. Is KFC stating, implicitly or explicitly, that Crocs, Inc. has endorsed their product?  This blogger thinks the answer is probably "no" based on the context of the use. Nothing from the ads would seem to indicate that there is an endorsement.

2. Is KFC diluting or tarnishing the Crocs trademark? This question is a bit harder to answer. The implication by the ads is that you can go to a KFC in any state of dress, even wearing a super casual outfit or one that is not suitable for being seen in public (adults in Nairobi are almost never seen in public wearing shorts).  Is this disparaging on the Crocs trademark?  Certainly Crocs are known for comfort and are not generally considered formal attire, so perhaps it is in line with the brand that Crocs, Inc. seeks to portray. Nevertheless it seems that Crocs, Inc. should be the (only) one deciding the reputation they seek, independent of any advertising campaign of other companies.

3. Is KFC taking unfair advantage of the Crocs trademark? Perhaps here the answer is also "no" since there would seem to be no direct relationship between a croc and fried chicken (even if, as it has been reported, crocodile meat tastes like chicken). On the other hand, KFC is clearly trying to associate itself with the casual/relaxed reputation earned by the footwear at issue.

In conclusion, this blogger appreciates the activities of KFC only insofar as they allow speculation as to the limits of IP law.

This was first posted on Afro-IP.

TIME FOR A SUI GENERIS TECHNOLOGY IMPORTATION RIGHT?

At the Intellectual Property Law Clinic in Nairobi, the following inquiry is a very frequent occurrence: "I saw technology X in foreign country Y, and it doesn't exist here in Kenya. I'd like to invest time and money in bringing the necessary equipment from abroad in order to practice this technology method (or make and sell this product) locally. Can I get any protection for that?"

The answer is always the same. No.

(Although, technically, the answer is yes. Since Utility Model Certificates are not substantively examined, a UMC could be obtained for the imported technology, although presumably such UMC would be invalid if the UMC holder ever tried to enforce it.)

The "No" answer is always very frustrating to the client, and this blogger has seen several business fail to launch simply because the would-be proprietor (read: tech transfer agent) decides it's not worth the effort since there is no exclusivity of any kind.

So this blogger has been thinking, and proposes the following concept for discussion. What if we granted a very limited exclusivity period for someone who imports a technology that exists elsewhere but (demonstrably) doesn't exist locally? Maybe the promise of 3 years exclusivity would encourage more tech transfer into the country, and would encourage local innovation as well (particularly as people observe the technology in the local context and brainstorm ways to improve the local experience)? 

Perhaps it's time to create a form of IPR that removes the absolute worldwide novelty requirement in exchange for a drastically reduced period of exclusivity. 

Reader thoughts?

This was first posted on Afro-IP.

NUANCES OF PATENTS AND TK

A recent article in the Mail & Guardian (here) claims that the European Patent Office recognizes Jans Roosjen, a Dutch man, as the "inventor" of teff flour and associated food products.  The article also states "Roosjen also has a patent for the “invention” in the United States — though he is patently not the inventor of a product that has been around for millennia."

As is almost always the case when it comes to patents, the situation is not as straight forward as this article makes it seem.

This blogger found EPO patent EP1646287 (B1) (access it here), with the above named inventor, and the title "Processing of Teff Flour".

Claim 1 of the patent is directed to "A flour of a grain belonging to the genus Eragrostis, preferably Eragrostis tef, characterized in that the falling number of the grain at the moment of grinding is at least 250, preferably at least 300, more preferably at least 340, most preferably at least 380." In short, then, this patent doesn't cover "teff flour and associated food products" except in the case that the flour has a "falling number" greater than 250.

Without getting too technical, here's an excerpt from the patent description to explain the falling number: "The falling number obtained relates to the amount of undigested sugars in the starch. The higher the falling number, the lower the alpha-amylase activity and the fewer digested sugars are present in the grain." In less technical terms, the higher falling number apparently allows the teff products to be used in making products with more "stability" and less of an "unattractive taste and/or structure."

Interestingly, it seems that the falling number can be increased simply by storing the teff post-harvest for at least several weeks.

Regarding traditional uses of teff, the patent background section states the following: "This crop has been cultivated for human consumption in mainly Ethiopia and Eritrea for more than 5000 years...  Teff flour is traditionally used for preparing injera, a spongelike, gray pancake with a somewhat sourish taste. Injera is usually made from a flour mixture consisting of equal parts of Teff flour and wheat flour diluted with water and yeast. The diluted flour mixture is usually fermented for three to four days before it is baked."

Patented teff?  Tough call. 

As for the US case, there are no related granted patents but there is a published application.  The application was abandoned in 2013 (USPTO data - see here), so there are no patent rights in the US.

There are no related patents on the African continent (according to EspaceNet data), although Ethiopia is not a member of the PCT so this blogger was not able to determine whether a related Ethiopia application was filed.

So, is injera patented?  Despite the broad statements in the Mail & Guardian article, traditional injera is not patented, as it is described as prior art in the background section of the granted patent. Instead, injera made from a very specific form of teff flour, with a specific property obtained by weeks-long storage of the teff post-harvest, is patented in Europe.

Is this an exercise of hair-splitting (or, more appropriately, teff splitting)? Possibly. This blogger finds it hard to believe that no Ethiopian prior to 2003 ever made injera with teff that had been stored for a few months. Of course, the question is actually whether such a process is documented - i.e., contained in the prior art. The simplest way forward, then, is for someone (e.g., the Ethiopian patent office) to find a reference from prior to 2003 that describes the use of stored flour in making teff. As this blogger understands EPO practice, national-level court cases would now be required to use such a reference (if found) in invalidating the patent. 

This was first posted on Afro-IP.

CELEBRATING(?) PATENTS, BY THE NUMBERS

For those of you too busy (watching football, perhaps...) to notice, the 10 millionth US patent was granted last Tuesday (US patents are always granted on Tuesdays, by the way).  This blogger would like to take the momentous occasion to look at some numbers.

The first US patent was granted in 1836. It took about 150 years for the US to grant the first five million patents, and less than 30 years to grant the next five million. It took just over 3 years (38 months, precisely) to grant the most recent million patents. That's an average of 26,315 patents per month, or 6,100 patents per week.

On 30 April 2018, ARIPO recently granted AP4556, the highest number this blogger could find. The earliest ARIPO patents granted in 1987. Although it has taken 31 years to grant 4556 patents, the last 1000 patents were granted in just the last 2.5 years (i.e., about 33 per month). The halfway point, AP2278, was granted in 2011, less than seven years ago. So the numbers in ARIPO are also showing a dramatic increase.

In Kenya, the most recent patent available to this blogger is KE789, granted in February 2018. The first Kenyan patent was granted in 1994, resulting in an average of 33 patents granted over 24 years. As with the US and ARIPO, grants were increasing in Kenya until about 2012. Interestingly, however, the number of grants in Kenya has been declining year-on-year since that peak year. Here are some of the numbers: 43 granted in 2017, 37 granted in 2016, 22 granted in 2015, 53 granted in 2014, 70 granted in 2013, 76 granted in 2012, 63 granted in 2011, and 53 granted in 2010.

As this blogger has said many times before on this blog and elsewhere, the number of patents is a poor measure of innovation in ARIPO and Kenya (and, presumably, most or all of Africa). There are also many other factors that affect grant rate, from population and GDP to culture and tradition. Nevertheless, it is striking to see a per-week grant rate that is more than three orders of magnitude larger in the US compared with African offices.



This was first posted on Afro-IP.

HOW TO ENCOURAGE INNOVATION?

The Government of Rwanda (GoR) has sought and now received a very large amount of money to stimulate local innovation. The African Development Bank (AfDB) has pledged 30 million USD to be used by the GoR to support innovation and the innovation economy; essentially, the AfDB and the GoR is now the largest source of venture capital available to SMEs and others in the innovation economy.   The idea behind the fund is to attract additional funding through private investors and to "develop sustainable innovation ecosystems, spur entrepreneurial growth, address funding gaps, reduce poverty, and promote socio-economic growth." The news is reported here among other places.

This move is entirely consistent with other actions taken in Rwanda, where a great degree of government involvement is typical. It is also somewhat in contrast with neighbouring Kenya, where government involvement takes a back seat (relatively speaking) to private initiatives.  This blogger is not taking any position as to which model works "better", but does wish to take the opportunity to suggest a solution to a long-discussed challenge to innovators in the region.

Two things are pretty well established: (1) there is very low utilisation of formal IP systems in East Africa (Kenya has fewer than 1000 locally granted patents, and registers fewer than 500 copyrights yearly); and (2) there is substantially more innovation occurring in the region than would be suggested by looking only at the low utilisation of formal IP systems.

Some people have suggested that formal ("western") notions of IP are not appropriate for the traditional culture of "Africa" (whatever that means). This relies on a belief that African innovators are always willing to share their ideas openly for the good of the community. In this blogger's experience, this belief sounds great but is almost universally untrue. Most innovators are intrigued by the concept of a system with no formal IP, until, that is, they observe or perceive the theft (i.e., unattributed use) of one of their own innovative ideas.

There is substantial merit in the idea of a system that is not bogged down by overuse of formal IP (e.g., patent thickets, patent trolls, etc.). How, though, do you reward innovators without stifling the innovative economy?

This blogger proposes that the GoR should use the funding (in part) and offer to buy patents from innovators. For example, offer a fixed amount (e.g., $1000, or $5000) to buy any granted patent or utility model filed by a local applicant, regardless of the commercial viability of the patented invention. For this to work, however, the GoR must also pledge that it will never enforce and never re-sell any of the patents that it buys.

This proposed scheme would incentivise innovation, would immediately release the innovation to the public, and would still allow flexibility - e.g., the patentee can decide to sell the patent for a quick profit or can keep the patent and attempt to commercialise the invention using traditional methods.  Everybody wins! 







This was first posted on Afro-IP.

BLOCKCHAIN - STILL A BUZZWORD BUT COULD IT SAVE THE MUSIC INDUSTRY?

A very recent post over on our favourite companion blog IPKat (Kats are, after all, mini-Leos) discusses blockchain in the context of what blockchain can do for IP. A very nice quote from the piece: "Blockchain need not be limited to patents; it might also be used in the field of copyright-protected works... [B]lockchain could provide a platform for the registration of copyright transfers  (not otherwise registered) facilitating parties interested in entering into a licensing agreement, thereby significantly reducing transaction costs." 

Well, that statement got this once-Leo (i.e., once a big Kat but now blogging more as a giraffe) thinking about another article, here, that is written by a musician (Imogen Heap) and similarly calls for the use of blockchain to help the music industry. Citing the lack of a global registry of works, Heap believes that blockchain would enable simplified licensing schemes and would streamline operations of CMOs and others in the industry.

In fact Heap tested the concept, releasing a song (Tiny Human, which this blogger admits to having never heard) and using smart contracts on the Ethereum blockchain platform to automatically distribute royalty payments to all those involved in making the song. It seems this was a success, albeit on a small scale.

My favorite quote from Heap is as true in the blockchain context as it has been true for so many other technological advancements (think radio, cassette tapes, MP3 players, etc.): "The larger players in the industry just need to have faith that they will make more money by doing the right thing — which would lead to fair remuneration, transparency, and a multitude of new business opportunities for artists."

There seems to be no limit to the variety of applications for which blockchain is now cited as an industry-revolutionising development. Certainly CMOs in this giraffe's neck of the woods (boo!) could use help in developing transparent, efficient, and fair collection/distribution of royalties - the recent change in CMOs licensed in Kenya is evidence (see here and here). Is blockchain the right technology for this challenge?  We may soon see...

This was first posted on Afro-IP.