Friday, 18 April 2014

Friday safaris

Innovation and IP Management
Open innovation is the use of “purposeful inflows and outflows of knowledge to accelerate innovation internally while also expanding the markets for the external use of innovation”. That is the definition in the second research paper by the International Chamber of Commerce Commission on Intellectual Property titled, 'The Open Innovation Model'.

The authors conclude, among others, that: (a) open innovation is expected to dominate the innovation model in the 21st century; (b) companies should comfortably use patents to share knowledge, technology as well as demonstrate the value of R&D; and (c) policymakers can encourage open innovation by taking steps such as improving the quality of patents. [Can one ever improve that with a deposit system?] Afro Leo thinks that this paper is ideal for both private and public sector policymakers. Anyone interested in IP management will equally find it instructive.

Copyright
LogoThis news report tells us that Nigeria's indefatigable collecting society, COSON, has signed up to the Interested Parties Information (IPI) system which is administered by the Swiss collecting society, SUISA. The IPI system - endorsed by CISAC (a network which lists COSON as its member) -  is used to trace the owner of various copyright works used worldwide. COSON is equally interested in the 'WAR AGAINST CANCER' in Nigeria.

Patents I
Patents for Humanity logoYou might have already heard this somewhere else (e.g. here); but just in case, a loud high five to the U.S. Commerce Department’s United States Patent & Trademark Office (USPTO) who recently announced that its Patents for Humanity initiative is being renewed as an annual competition. The programme recognises businesses, inventors, non-profits, and universities who leverage their intellectual property portfolio to tackle global humanitarian challenges. Winners receive an accelerated processing of select matters at the USPTO. For more details, click here and here.

Patents II
ViiV HealthcareThe ever-reliable IP Watch informs us that the Medicines Patent Pool (MPP) has announced two new licencing agreements with the private sector joint venture ViiV Healthcare. This deal is expected to see an increase in the access to a new antiretroviral drugs in countries hardest hit by HIV/AIDS. (Previous Afro-IP posts citing MPP include here and here. Another source for this news is here). 

IPRs and domain names
HomepageThe representatives of South Africa's ZA Central Registry (ZACR) and the Internet Corporation for Assigned Names & Numbers (ICANN) have signed an agreement that would see the launch of the .africa internet domain name (gTLD) in May 2014, reports dot Africa. Bursting the happy bubble is WebTechLaw director, Paul Jacobson, who warns domain owners that the warranties they agreed to when signing up for a .co.za domain (which will apply to .africa) are overly onerous and could leave them with serious IP infringement liabilities and associated costs. [Afro Leo kindly asks readers to shade light on this matter including, if publicly available, directing us all to the actual agreement] What do Nominet (.uk ccTLD registry) and  Neustar (.us ccTLD registry) say in their T&Cs?

Plant Variety Protection 
UPOV HomeFinally, and better late than never, a Leo roar to Afro-IP's friend, Tom Suchanandan, for alerting us to this strongly-worded letter (by concerned groups) against ARIPO's Draft Protocol for the Protection of New Varieties of Plants - which has since received a stamp of approval by the UPOV's council. [Did ARIPO receive assistance from UPOV in drafting this, in the first place?]. In summary, the alliance wrote: "The Draft Protocol clearly lacks credibility and legitimacy. We strongly urge you to reject the Draft Protocol and that the Draft Protocol should be sent back to the drawing board; that ARIPO consult with smallholder farmers and civil society in all ARIPO member states; and, especially, that it discusses appropriate and equitable PVP regime that reflects conditions and realities prevailing in ARIPO countries, the obligation of protecting biodiversity, incorporates farmers’ interests and rights and safeguards to protect public interests and prevent biopiracy." The proffered benefits of plant variety to farmers and growers can be heard here 

Tuesday, 15 April 2014

PAIPO: ARIPO AND OAPI SPEAK

source: ARIPO 

After a long time since we've heard concrete news about PAIPO, this Leo learnt this morning via Prof Yousuf Vadwa that ARIPO and OAPI held a consultative meeting in Harare last week, following which they released a communique on the establishment of PAIPO (available in full here).
The meeting attendees are pictured on the left. They were:




(i)  Honourable (Retired) Major General Kahinda Otafiire, who is the Chairman of Council of Ministers of ARIPO and Minister for Justice and Constitutional Affairs of the Republic of Uganda;
(ii) Honourable Anacleto Olo Mibuy, who is the President of the Administrative Council of OAPI and  President of the Scientific and Technological Research Council of Equatorial Guinea;
(iii) Honourable Emmerson Mnangagwa, who is the Minister of Justice, Legal and Parliamentary Affairs of Zimbabwe;
(iv) Honourable Fortune Chasi, who is the Deputy Minister of Justice, Legal and Parliamentary Affairsof Zimbabwe;
(v)    Dr. G. Gandawa, who is the Deputy Minister for Science and Technology, Higher and Tertiary Education of Zimbabwe;
(vi) Mr. Bemanya Twebaze, who is the Chairman of the Administrative Council of ARIPO and Registrar General, Uganda Registration Services Bureau (URSB);
(vii)   Mr. Fernando Dos Santos,  who is the Director General of ARIPO; and
(viii)  Dr. Paulin Edou Edou, who is  the Director General of OAPI.

 The meeting addressed the following requests to the AU (verbatim text of the communique in blue] :
(a) to convene the Stakeholders Meeting as a matter of urgency to enable the participation of all stakeholders including ARIPO, OAPI and WIPO,  [this resonates with various calls for a more transparent and inclusive approach to discussing PAIPO] and
(b) for the Ministries/competent authorities responsible for IP to play a leading role in the process of establishing PAIPO [to date PAIPO has been the province of ministers of Science and Technology] .

The communiques also highlights the following issues, as being amongst those that must be discusses at the Stakeholders Meeting:
 a) development of a roadmap for the implementation of the decisions of the Heads of State and Government on the establishment of PAIPO; [this Leo has found that the lack of detail surrounding the establishment of PAIPO very frustrating as it makes it difficult to engage with the process and to make contributions]
b) review of the Final Draft Statute of PAIPO [a number of concerns have been raised about the wording of the statute and its review is essential] .

Finally, the communique ends with the following recommendations:
 i.That Ministers responsible for IP in the various African countries should form the political organ that will provide political and policy orientation to PAIPO and oversee the gradual and systematic implementation of the decisions taken by the Heads of State and Government regarding the implementation of PAIPO [what would be the role of Ministers for Science and Technology, this Leo asks? Not to mention Trade & Industry  and Arts & Culture?].
 ii.In view of the fact that ARIPO and OAPI have gained enormous experience in the registration and granting of industrial property titles, the Heads of State and Government should create a unit [with OAPI and ARIPO representation and/or leadership?] within the African Union Commission whose mandate should be policy and political direction and orientation on intellectual property matters for Africa.
 iii.That unit should also oversee and coordinate the harmonization process between ARIPO and OAPI [this harmonisation process is one to watch. What will it entail?] .
iv.That since both Organizations have a total of 35 member states out of 54 African countries, a united African Intellectual Property Office could emanate from the amalgamation of both Organizations [confirmation of the merger rumours?].
 v.The joint committee recommended that ARIPO and OAPI should continue to be the two organizations to register IP in Africa.
 vi.That the Heads of State and Government should be sensitized on the role ARIPO and OAPI play in the management and coordination of IP in Africa.

Certainly lots of food for thought for this Leo and Afro-IP readers! further thoughts or comments, anyone?

Don't you dare blame TRIPS again - Max Planck Institute declares

Although this Leo has an inherent bias towards another, he must say that any IP research by Max Planck Institute (MPI) does carry enormous weight across Europe when unleashed. (Also see MPI's work on European collective rights management and here + here on European trade marks). 

You may have already seen the IPKat's post, but it seems that this blog might be the first to lead you to the actual text of the research or Declaration (as they prefer to call it). You can read the summary here or just dive straight into it here. The Declaration document is neatly laid out and would serve as a reference point for national IP policymakers or those working with developing countries (including the least-developed) on IP law reform.

To this Leo, instructive in MPI's research are as follows:

(1) Patent problems are not exclusive to developing countries
(2) Make effective use of the TRIPS flexibilities (especially, compulsory licensing) but challenges posed by trade deals are recognised
(3) States must regularly revisit IP laws and are allowed to implement TRIPS taking their socio-economic interests into account (e.g. have a look at this OECD report in 2004 titled: Patents and Innovation: Trends and Policy Challenges)

Commentary
This Leo cannot remember the number of times that he has cautiously hinted on MPI's key observation, regarding the TRIPS flexibilities, in his posts (maybe, here, here, here, here or here. Other Afro-IP posts pointing to this observation include here, here, here, here and here). To his young mind, IP discourse (in relation to developing countries and like in all similar issues) have somewhat been polarised - with each group legitimately fostering their respective interests. The middle ground, albeit existing and relevant, seemed not interesting enough. (Says Afro Leo: "MPI should tread carefully before the 'IP maximalist' mark is firmly stamped on its forehead. That stamp is easily and readily available for use")

One cannot honestly say that making effective use of TRIPS flexibilities is a panacea. However, it is a meaningful step towards mitigating the identified problems we have at hand; no? Joseph E. Stiglitz (an advocate of pro-development IP regimeargues that poorly designed IPR regimes is a major problem; there should be a 're-think' of patents; and that TRIPS still remains an unbalanced global regime - with the U.S, in particular, foisting far stronger rules on others (see herehere and here). 

China and India are good examples of countries which have played the IPR regime game quite well to get to where they are today. African countries may well have woken up too late; the hope is that they can still readjust. To do so may require growing a backbone - albeit that most neither have a choice nor bargaining power. In an ideal world, it may even be better to call for the suspension of patent law in order to allow developing countries to emerge on a reasonable level playing field. That is not the world we live in and,  how can one determine what is a level playing field? Moreover, what would be the impact on creative individuals or businesses in terms of competing with one another and consequentially, creating IP? There are no easy answers or solutions.

He prefers to sit on the fence on these matters (maybe, call him an IP minimalist). This is what he believes in: the people in most, if not all, African countries are capable of creating all things which (generally speaking) the prevailing IP regimes are designed to protect.

Over to you for your thoughts.

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MPI's Proposals for Amendment of TRIPS are here
Tired of IP maximalists? See them here, here and here

Monday, 14 April 2014

World Moto Inc. 'looking forward' to another quick patent: The benefit of a deposit system

Fussy Lion Cub
Always fussing about the office. 
Source: here
This young Leo has learned that World Moto Inc. are about to lay hands on another patent for its Moto-Meter™ technology. This latest patent comes from South Africa - who is expected to issue on 30th April. (If interested, the certificate will be posted on the company's facebook page). [Another publicity round for them?" asks Afro Leo]. Yes, Afro Leo; you will soon understand why, in a moment.

Background
As this Leo currently understands: World Moto filed a PCT application (probably with the USPTO) seeking to protect the Moto-Meter™ technology in 61 countries, including some in Africa. Several forward-looking statements (including here for Mexico) inform the public that Nigeria was the first to grant (see Moto-Meter Granted a Patent in Nigeria -- Monopoly Guaranteed Until 2033hereinafter, 'Press Release for Nigeria'). For the purposes of this post, here are crucial excerpts from that article: 

Excuse me, what are you looking at?
Source: World Moto Inc
"Nigeria is the first locality to complete its investigations and issue a patent. The patent was granted as filed, with no changes or office actions required on any of its 28 claims, and will remain in force until February 8, 2033. The remaining 60 countries are currently in the substantive evaluation period and are expected to complete their investigations within the next 4 years. Based on its success in Nigeria, and its original favorable review from the Patent Cooperation Treaty Examiner, the Company expects ultimately to be awarded a patent in every targeted jurisdiction."

"World Moto CTO Chris Ziomkowski stated, "The Moto-Meter will greatly affect billions of lives and we are pleased that the Nigerian Patent Office has so quickly recognized its novelty and industrial applicability. Having a patent on an innovation of this magnitude will allow us to fully develop the market for everyone's benefit."


Afro Leo, can you now see the minor reason for this post: Nigeria was the first to investigate (or according to the CTO: "...quickly recognised its novelty and industrial applicability") and issue a patent? South Africa is next. Is there something in common in respect of patent law and practice in these two countries? This Leo, as usual, will pick on Nigeria. 

Commentary
It is often good news when foreign investors or entities see growth opportunities in various parts of the continent. This technology may well help improve - at least, in terms of motorcycle transportation cost - the lives of many. However, this Leo is unsure about the advertising part of it: glowing wheels in the dark? [Afro Leo may well need a cool Ray-Ban sunglasses]

Winning hearts and minds
Based on experience - in working with tech entrepreneurs, especially those looking for funding and partners - this Leo gathered that some investors are somewhat easily pleased to hear or see the phrase, 'patent pending'. Same may be said for potential distributors, licensees and dealers eager to pounce on business opportunities - subject to terms such as IP infringement indemnity. 

On the macro level, this Leo would be interested to know how World Moto (including their distributors or dealers) assessed last year's news which reported that the Nigerian Federal Government urged States to ban the commercial use of motorcycles. [Obviously, market research was conducted to reveal that opportunities outweigh risks. Confident Afro Leo continues by guessing that one of World Moto's counter strategies may involve lobbying certain States not to follow orders or even to introduce meters. Moreover, he also sees the lucrative side of the personal use market. At the end of the day, investors/business people need a decent level of certainty in order to participate in a market. World Moto sitting comfortably]

Having secured some distributors, one has to feel that World Moto has, at least, won some business hearts and minds in their target markets. 

The PCT route to market
At the heart of patent regimes is novelty. It is commonly held that patent owners, with global ambitions, tend to tend to take advantage of the provisions of the Paris Convention or  PCT system (provided targets are members thereof) than bear the burden (e.g. costs and priority date) with individual applications for every target. The PCT system is common and notable, not least, due to features such as: a single application (in-country or directly with WIPO), initial basic formalities, and coverage in up to the current 148 members.

From a strategic viewpoint, one of the beauties of the PCT system is that its examination/reporting system assists an applicant in reaching a decision on countries to proceed with in the national phase. This, more often than not, means that - again, provided basic formalities are met - countries operating a deposit system (e.g. Nigeria and South Africaquickly grant - with or without a favourable search/opinion report

Sorry, no substantive examination in Nigeria and South Africa
The main point in this Leo's commentary is this: reading the Press Release for Nigeria, one would be forgiven to think that Nigeria's IP office currently conducts substantive examination on patent applications; the reality is otherwise (see herehere and here).

According to available sources, sub-section 4(4) of Nigeria's Patent Act states: "Patents are granted at the risk of the patentee and without guarantee of their validity." When one reads the whole of section 4, what Nigeria's IP office must not do with any given patent application becomes very clear. The same can also be said of South Africa's Patent Act (in particular, see Chapter V).

Indeed, the global authority on the $500 billion dollar moto taxi industry is feeling smug has done well with its patent strategy and media publicity. After grant, comes enforcement. World Moto, this Leo wishes you the very best with the press releases African venture.

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World Moto files a patent application for Wheelies™ technology in the U.S. here
What are forward-looking statements? see here
See the benefits of substantive examination for pharmaceutical patent claims in South Africa, here
Challenges and options in substantive patent examination are here

More fussiness from Afro Leo:
(1) 'World Moto, Inc. Opens North African Regional Office in Lagos, Nigeria -- a $150 Million Market for Moto-Meter'. Is Nigeria also becoming the hub for North Africa? Wow, so much good news for Nigeria.

(2) Why did this press release, 'Moto-Meter(TM) Patent Clears Final Hurdle in South Africa -- Africa's Largest Economy') dated 7th April, not pick up (from herehere and here) that Nigeria is now the largest economy on the continent? This Leo knows why they may well be right in doing so: because the great majority of Nigerians do not care about this new-found status and the World Bank, for example, is yet to update its website with this new GDP figure. Does it mean that Nigeria is, probably, living in its own dreams?


Friday, 11 April 2014

IP Policies in Africa: no.19: Ethiopia

This week the series finds itself in Ethiopia, the home of exceptional coffee. Afro-IP readers will be familiar with Ethiopia's experience with Starbucks which has been reported upon several times on this blog (e.g. here and  here). As a member of COMESA, Ethiopia subscribes to the COMESA IP Policy. Ethiopia does not yet have a national IP policy. She has a Science, Technology and Innovation (STI) Policy (2012) which addresses IP.  The STI policy is available for download from the Ministry of Science and Technology' website (here). It states:

"3.8 Intellectual Property System
Intellectual Property system is said to play a valuable role if it contributes to technology transfer as well as to technology capability building through FDI and technology licensing. Nevertheless, intellectual property system as a whole in Ethiopia is not playing a substantial role in accelerating technology transfer and expansion of local innovation activities. Hence, the Ethiopian IP system needs to be designed in such a way as to support the endeavor of technology learning and adaptation as well as to protect the rights of inventors and creators and support the augmentation and application of indigenous knowledge".
It then lists the following strategies for implementing these goals"
"1. Make use of IP information at large in support of the efforts to build national technology capability;
2. Establish and implement a system that ensures effective protection of indigenous genetic resources and IP assets of the nation besides bringing benefit out of them.
3. Develop and implement the application of IPR systems at national and institutional level;
4. Strengthen and implement copyright protection in such a way to encourage and promote creative works;
5. strengthen trademark protection to create a healthy and competitive environment among manufacturing and service providing enterprises."

The only recent analysis of the STI Policy (2012)  of which this Leo is aware is that by Wondwossen Belete entitled 'Towards University–Industry Innovation Linkages in Ethiopia' ( available in full here). This analysis focuses on how the STI policy in the context of reaping benefits from publicly funded research.

------------------------------
WIPO: The Coffee War: Ethiopia and the Starbucks Story
For a study on the use of GIs for Ethiopian copy see Chidi Oguamanam and Teshager Dagne 'Geographical Indication (GI) Options for Ethiopian Coffee and Ghanaian Cocoa' here
Ethiopian IP Laws on WIPOLex 
Ethiopian Ministry of Science and Technology website
A review of African official IP websites: no.19: Ethiopia

Monday, 7 April 2014

Libyan trade mark office gets back to normal

Via the latest newsletter of NJQ & Associates comes some information concerning Libya. NJQ reports as follows:
Please be advised that the Libyan Trademark Office (LTMO) is now fully operational and will soon start to issue registration certificates, renewal certificates, and recordals certificates (assignments, mergers, and changes of name and address).

We are listing below statistics issued by LTMO representing the number of applications filed from 2002 to March 2014:

YEARNUMBER OF FILED APPLICATIONS
200242
2003406
20042135
20053337
20063831
20074056
20082944
20093212
20101920
2011296
2012NONE
20133499
2014 (through February)1064


It was noticed that recently the LTMO has improved its operations and is trying to accelerate the registration procedures.
This must be encouraging information for those seeking to protect their legal interests in Libya, as well as for all those who look forward to seeing the country make some economic progress after its recent travails.

Copyright-based industries boost Nigeria's latest GDP: Time for a comprehensive study (Part I)


It is obvious that this Leo is neither an economist nor a statistician; this is why he admires those, with or without such titles, who keep it simple for us all to understand. So what does he or does he not understand? 

Largest economy in Africa by GDP

Nigeria's National Bureau of Statistics (by the way, a decent website) has officially announced that the country's re-based GDP figure stands at $509.9 billion USD. As expected, many have rightly focused on the continental significance of this news - which ranks Nigeria as the largest economy - but Afro-IP's interest is to find out whether any of the economic activities is related to any form of intellectual property. 

Creative industries significant to GDP

Out of the existing models, this Leo prefers the classification, 'copyright-based industries', used by WIPO albeit not significantly different from the UK's 'creative industries' approach. The UK is notable in this field since it has taken this area of the economy seriously and provided much-needed thought-leadership. In case you wish to read a recent international analysis of the creative industries, see UNESCO's Creative Economy Report 2013. (NB: in this two-part post, 'creative industries' and 'copyright-based industries' are used interchangeably).

Key GDP figures attributed to creative industries

The standout sector is the Motion Pictures, Sound Recordings and Music Production (for ease of reference, Media & Entertainment) with a re-based value of: 0.88% (2010), 1.01% (2011), 1.20% (2012) and 1.42% (2013). This sector has never featured in Nigeria's GDP figures, hence its inclusion for comparison with other sectors over the years. The 2013 Nominal GDP growth rate figures for the Media & Entertainment and Publishing sectors are 33.49% and 14.06% respectively. 

Copyright and other forms of IP will undoubtedly be created or exploited, in one way or the other, in sectors including Food, Beverage and Tobacco (17.24%), Arts, Entertainment and Recreation (27.23%), Telecommunications and Information Services (12.25%), Chemical and Pharmaceutical Products (16.48%). To avoid oversight, see the NBS's presentation here (pages 25 and 26).

Afro Leo is generally curious: "Nigeria's IP registry (which would come under Public Administration) should be considered in the GDP figures. See how much revenue its UK counterpart generates here").

Where did the NBS get the data from?

Below are extracts from the NBS' methodology notes which can be viewed in full here.

10.2 PUBLISHING
The activity of publishing as a sector comprises book publishing, publishing of directories and mailing lists, publishing of newspapers, journals and periodicals, other publishing activities and software publishing. Publishing companies are becoming prominent in the Nigerian economy, in which companies like University Press Plc, Longman Nigeria Plc and Learn Africa among others are quoted in the Nigeria Stock Exchange.

Data Sources/Baseline Estimates: Data on publishing was obtained administratively from the Nigerian copyrights Commission.

Gross Output: The Gross turnover is made up of revenue from publishing services.

Intermediate consumption: This includes details of the cost structure including transportation fees, operational expenditure, minor repairs etc.

10.3 MOTION PICTURE AND SOUND RECORDING 
This activity falls under Section J –Information and Communication with Division 59 of ISIC rev 4. This comprises motion picture, video and television programme and sound recording activities.

Data Source/Baseline Estimates: Data is provided administratively through (Performing Musicians Association of Nigeria (PMAN), Music Label Owners and Recording Industries Association of Nigeria (MORAN), Nigerian Film and Video Censors Board (NFVCB), Copyright Society of Nigeria (COSON) and administrative data from NEXIM bank.

Gross Output: This is based on revenue generated/total sales from the number of movies and sound recordings produced. This also includes revenue generated from TV rights, royalties and fees. (As a result of piracy, a portion of revenues here was reapportioned from Wholesale and Retail trade)

Intermediate consumption: This is the detail on the cost structure of operating firms  including transportation fees, operational expenditure, minor repairs and maintenance,  extracted from their annual accounts.

10.4 BROADCASTING 
The sector comprises radio broadcasting, television programming and broadcasting activities. The activities of the sector which was formerly carried out by public corporation or limited liability companies owned by government, has observed a tremendous development, due to up surge of many private and public radio and television establishments.

Data Source/Baseline Estimates: Data on private sector broadcasting market participants were obtained administratively with the help of the Nigerian Communications Commission while data on public sector broadcasting was obtained from the Accountant-General’s Reports of the states and the federation.

Gross Output: Data on public corporation was derived on the basis of expenditure incurred from Accountants General’s reports; while the private component relies on revenue generated from services rendered e.g. advertisement. Therefore, the output of broadcasting is the addition of the private establishments and public corporations.

Intermediate consumption: These are details of the cost structure of market participants which include transportation fees, operational expenditure, minor repairs and maintenance etc.

11. ARTS ENTERTAINMENT AND RECREATION
This sector is contained in ISIC Rev. 4, Section R, division 90-93, and comprises four  different activities with different sources of data pulled together to make a sector. The activities are:

a. Creative, arts and entertainment,
b. Libraries, archives, museums and other cultural activities,
c. Gambling and betting activities and
d. Sports activities and amusement and recreation activities

Data Source/Baseline Estimates: Data is provided through the establishment survey (Performing Musicians Association of Nigeria (PMAN), Music Label Owners and Recording  Industries Association of Nigeria (MORAN), Nigerian Film and Video Censors Board (NFVCB), Copyright Society of Nigeria (COSON, performing arts and promoters, for creative art and entertainment). For Libraries, archives, museums and other cultural activities, their sources of data came from the annual report of Accountants General of federal and state governments, because the activities are mostly managed by federal and state governments.

Also data on Gambling and betting activities was obtained from NBS Rebasing Survey on betting and gambling houses, recreational facilities and amusement parks, sport recreation and amusement. The informal sector component was covered by the National Manpower Survey.

Gross Output: Data on revenue generated was estimated in two categories: one as a market output and the second as non-market output (public establishments).

Intermediate consumption: Details of the cost structure were obtained from the annual
reports of firms.

This Leo's commentary is coming soon; in the meantime, see last year's post in which he unashamedly attempted to promote Africa's creative industries in the UK. 

Friday, 4 April 2014

IP Policies in Africa no. 18: Eritrea

Eritrea does not have a national IP policy but as a member of COMESA subscribes to that body's IP policy. If the country is working on a national IP policy it is doing so without WIPO's help. A search of WIPO's Technical assistance database does not reveal any IP policy related activities (see results here).

As it's a Friday, and she has some time on her hands, this Leo went in search of recent Eritrean news and learnt that the country has withdrawn from the 2015 Africa Cup of Nations qualifiers (see BBC Sport's report here). Being clueless about soccer, this Leo will not venture any comment on the import of this development and leave it to more knowledgeable Afro-IP readers to mull over this with their Friday sundowners. Woza Friday!

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For Kingsley's review of Eritrea's national IP Offices' webpresence see here and here
For some thoughts on the COMESA IP policy see here 
WIPO (2011) An explanatory note on the ratified Eritrean Constitution of 1997 and the current Eritrean intellectual property regulatory framework

Monday, 31 March 2014

Software Patents on Trial - will the USSC finally provide clarity? Part 2

The United States Supreme Court (USSC) is today hearing oral arguments in Alice Corp v. CLS Bank, with a decision expected in the summer. In a previous post (here), a bit of background is given to stress the importance of this case to software patents and to the ICT industry generally.

African/European readers may be asking, who cares what the USSC says about software patents (other than people/companies/courts in the US)?

By far, the US has the most relaxed attitude toward software patents, and the US patent office grants more software patents than any other office. If the US suddenly reverses course and severely curtails the scope of allowable subject matter in software-based inventions (and potentially invalidates many existing software patents), courts and patent offices around the world will take note. Some countries (e.g., New Zealand) may use the decision to strengthen their efforts to eliminate such patents altogether.

The US Federal Circuit has made a mess of patent-eligibility of software patents (see Patently-O here), and the Europeans have done little better (see the excellent IPKat post here). Readers are invited to comment on other countries (Japan, anyone?), but it seems safe to say that patent laws were not devised with software in mind, and the courts just haven’t yet figured out what to do about that. Courts, legislators, companies, and others around the world are surely hoping for some clarity on the matter, and there is no better place to start than the highest court in the land where software patents have been traditionally welcomed.

Clarity from the USSC would bring a new perspective into the debate about the benefits of software patents in African countries.
When it comes to uncertainty,
Heisenberg said it best


In Kenya, perhaps surprisingly, a change in the patent law in 2001 opened the door for a very liberal interpretation of patent-eligibility of software. Pre-2001, the Kenyan patent law (like most countries) specifically excluded software. The new patent act of 2001 lacked this exclusion, but notably maintained other patentability exclusions. The only rational conclusion is that software is not excluded from patentability.

Indeed, the Kenyan Industrial Property Institute (KIPI, the Kenyan patent authority) has been issuing software patents.  See, for example, KE000608 (claiming “A security server arranged to set up communication between a merchant device and a customer payment application”) or KE000441 (from Nokia, claiming “A method of providing user plane traffic during a state of inactive user plane of a connection to an access network”).

ARIPO has also been issuing software patents. See, for example, AP2682 (directed to “a system for facilitating the initiation and/or conclusion of an insurance contract”) or AP2668 (from Nokia and directed to “a new method, system, apparatus and software product for dynamic gating of an uplink (UL) control channel”).

Hoping for Draconian?
So what happens if the USSC decides that the Alice Corp. software-based patent claims are not patentable? Litigation involving software-based patents is rare in Africa (do readers know of any?), but it’s not hard to imagine a Kenyan court relying on the USSC to hold similar patents unenforceable.


On the other hand, patent attorneys tend to fashion themselves as cleverer than the courts, or perhaps they are simply desperate dedicated to find solutions for their clients.  Whatever the case, it seems unthinkable that the USSC will be able or willing to go so far as to completely eliminate all avenues for protecting software based inventions. It was earlier court decisions that caused patent drafters to use such absurd creative wording as “a computer readable storage medium.” Most likely, and unless we receive a truly draconian holding in CLS Bank, patent drafters will continue to write software patents with wordings that are carefully tailored to be compliant with this and other USSC decisions.  

Software Patents on Trial - will the USSC finally provide clarity? Part 1...

Today (31 March), the United States Supreme Court (USSC) is scheduled to hear oral arguments in Alice Corp v. CLS Bank. This case follows on the heals of Mayo v. Prometheus Laboratories from 2012 and Association for Molecular Genetics v. Myriad Genetics from 2013, and indicates a strong desire by the USSC of clarifying that tricky issue of patentable subject matter.

In Prometheus, the Court held that patent claims directed to a method of optimizing therapeutic efficacy of a drug comprising administering the drug to a patient and measuring a level of metabolite of the drug are invalid as not patentable subject matter. In Myriad, the Court held that patent claims directed to a method for screening patients based on the presence of mutated DNA, and patent claims directed to isolated genes, are invalid as not patentable subject matter.

Now, in CLS Bank, the Court is being asked to review a lower court’s holding that patent claims directed to computer implemented methods (often called “software patents”) are not patent-eligible. Remarkably, this is the first USSC case on the viability of software patents in over 40 years. In that time, not many would disagree that the lower US courts have made a fine mess of the issue. The Federal Circuit decision that led to the USSC granting certiorari in CLS Bank involved a panel of 10 judges and resulted in seven different opinions. It is safe to say that the Federal Circuit cannot agree a single standard for analyzing patent-eligibility with respect to software-based inventions.
 
Some people already know
what to do with Software Patents
This uncertainty is a serious problem due to the importance of software patents. More than 40,000 software patents are now issued in the US every year. The vast majority of cases brought by “patent assertion entities” (i.e., “trolls” or “non-practicing entities”) involve software patents. Most countries around the world allow software patents in one form or another (even despite attempts to eliminate them – see here on the debate generated by New Zealand).

The statistics about the CLS Bank case specifically are also astounding. Alice Corp. holds the patent at issue, and CLS Bank (allegedly) uses the patented methods to make settlements of over $1 trillion every day! Perhaps more importantly, though, the patent at issue has claims that are not remarkable. If they are held to be ineligible for patent protection, the validity of thousands of issued patents will become quite uncertain.

Clearly, then, the stakes couldn’t be higher. Roughly 40 amicus briefs were filed, from parties in favor of maintaining software patents (e.g., IBM, which not-so-coincidentally also happens to be the company perennially obtaining the most US patents) to parties opposed to software patents (e.g., Google as well as the US Government).
 
Hallowed halls -
but can they save us from uncertainty?

The USSC decision is due to be released in June/July. Much has been said on this case (see, e.g., Patently-O here) and much speculation will follow the oral arguments. This blogger merely hopes that, whatever the decision, the holding is clear and definitive.