Monday, 24 November 2014

IP policies in Africa no. 40: São Tomé and Príncipe

São Tome and Principe recently joined ARIPO (see Aurelia's post here).  WIPO  has drafted a National Intellectual Property Development Plan  for the country upon its request and held validation meeting on the policy in September 2014 ( see meeting details here, in  French). The policy itself is not yet publicly available but hopefully it will be available on WIPOLex after its formal adoption by the country.
-------------------
WIPOLex entry here
Industrial Property Office website here

Wednesday, 19 November 2014

The Illusionary Rise of Africa

St Andrews logo from name tag Are the BRIC countries intensifying Africa’s dependent position in the global political economy?  This was the question presented by Professor Ian Taylor yesterday at his presentation in Chicago.

This Little Leo had the privilege of attending the program, which was hosted by the University of St. Andrews, thanks to the graciousness of her little sister.  (Her sister studied abroad there, and so took her along as ‘friend of an alum’ despite the topic not being on the top of her “interesting things to do on a Tuesday night” list.)

Africa Rising?

We are all very familiar with the “Africa Rising” language.  On this blog alone, we’ve covered it many times: as early as a 2008 review of Vijay Mahajan’s book titled Africa Rising, a 2010 JIPLP article review, INTA’s Africa Rising initiative in 2012, an update on it in 2014, highlighting The Economist’s 2013 “Africa Rising” cover, WIPO’s 2013 announcement to open regional offices on the continent, and recently the EU and US desires to be part of the movement with their summits.  Look at all this great stuff happening!  Look at all the attention!  Surely, Africa must be rising.  Everyone says so, and after all, three people produce a tiger.  Could we really all be wrong?

Yes, says Professor Taylor.  Africa is not really rising.  It is an illusion.  This illusion is accepted by so many people because it is produced by applying economic measuring tools that work (or at least are presumed to work)* for developed countries to developing country economies.  Namely, GDP growth is used as the measuring stick for development.  However, Professor Taylor points out, GDP is computed using the location of value origin without considering where the value actually winds up.  In the case of most African countries, the rising GDP numbers are triggered by exporting of commodities, raw resources whose true value is added and kept outside of the source countries.

The true direction of change

Professor Taylor explained his point with some charts and graphs.  One showed the mimicking shadow of Africa’s GDP against the global commodities market.  The former is nearly completely reliant on the later.  For the continent as a whole, 80% of all exports are commodities, for Western Africa, 90%; for Central, a whopping 98%.  Because commodity prices are high and the commodities Africa has are in high demand, many African countries have increasing GDP numbers, which makes it look like they’re developing.  To understand the real “growth” (or lack of it), Professor Taylor recommends using a different measuring tool called Genuine Savings.  To compute genuine savings you use the following equation:

genuine savings

When this formula is used, none of the African countries on the Top 10 Growth Charts show positive numbers.  Nigeria, for example, often hailed for its development, had GDP growth of 6.7% in 2012, but it’s Genuine Savings “growth” was -10.2%.  Ouch.  Even South Africa, the usual outlier with a comparatively diversified economy is not in clear water, showing 2012 GDP growth of 2.5%, it’s 2012 Genuine Savings growth was -0.9%.  (Little Leo would like to point out a particularly interesting comment by Professor Taylor: Genuine Savings is actually the method of calculation preferred by the World Bank. Why isn’t it the standard?)

Deja Vu

The scary part is this is not new.  Africa has seen this before, particularly in the 1960s.  (This is where everyone’s alarm bells should be going off.)  This is how things were around the time that many countries were becoming independent.  Commodity prices were high and Africa’s commodities were in high demand.  Now, in this decade of jubilee celebrations, are we really just back where we started? 

There is one difference this time, it’s not the former colonists finishing up the grabs they started back in the long lost years when the Brits were the prude ones. (eg.) The current biggest exporters of these commodities are BRIC countries.  The time-frame when Africa’s “growth” started is the same time when BRIC countries became really interested in getting commodities from Africa.

BRICs Walling in Africa?

Wait a minute. (Pause for Little Leo’s comments.)  Aren’t the BRIC countries our friends, our brothers and sisters in the Global South?  They’re the ones that stood with us at Doha, that helped us create a Development Agenda at WIPO, that rally with us to tweak the global IP regime ever so much so that it can almost start to work for us.  They’re the ones that lead our collective oomph in these arenas.  Are they really hurting us by trading with us?

Again, Professor Taylor says yes.  (Unpause.)  Commodities are finite resources.  When they’re gone, they’re gone.  Relying on commodity exports to fuel the economy wedges countries into a “resource corner.”  If African countries do not start adding value within their borders, they’re going to be in trouble as soon as prices fall and needs wane.

Give Us More!

Professor Taylor ended his presentation with a call for more research on the following four issues:

  1. How can emerging economies promote sustainable development? (This is a question also asked by many IP scholars.  Perhaps there’s a chance for some overlap here or the *This section (above) is a summary of Professor Taylor’s presentation. Little Leo’s comments are in red so as to prevent her getting credit for his brilliancy or him for her lack thereof.opportunity to work with Professor Taylor.) 
  2. Exploring the difference between B, R, I, and C, etc.
  3. Implications for governance in Africa. (Little Leo sees conversations about this frequently on Twitter. The younger generation seems very much aware of the loss of value-add opportunities and understands the current barriers.)
  4. Implications for the West.

*This section (above) is a summary of Professor Taylor’s presentation. Little Leo’s comments are in red so as to prevent her getting credit for his brilliancy or him for her lack thereof.

Little Leo wasn’t able to ask her questions, like how the population’s youngness or the growing number of highly educated and influential active members of society might change the trajectory such that the next few decades are not a repeat of the 1970s and ‘80s. --She and her sister had to run to the station to catch the last train home.  (Sadly, there are no minibuses or pikipiki between Chicago and Milwaukee.)--  Before she could raise her hand, a gentleman near the back blurted out his I-clearly-know-nothing-about-Africa question, which she could have forgiven him for a little more easily if he’d at least raised his hand. 

What he asked was what anyone who hadn’t experienced the answers first-hand might have asked, “Why isn’t value being added in country?”  Professor Taylor began listing the reasons: poor infrastructure, bureaucracy, corruption, unsecure nature of property rights, etc.  So what can be done to change this?  And, primarily for our interest (because this is, after all, an IP blog and Little Leo had to get there eventually), how can IP practitioners and scholars and the IP regime help bring about value-adding within Africa’s borders?  Let’s add that question to Professor Taylor’s list above.

IP’s Role in Changing the Trajectory

A few simplistic answers to get us started.  We’ve already seen some ways in which we, collectively as the IP-savvy African movers and shakers (this Little muzungu Leo should stop lying, she cannot move or shake like an African), have worked towards increasing the ability of companies to add value within our borders.  Many of the posts linked to above in the “Africa Rising” discourse paragraph discuss these things.  Strengthening of IP enforcement is a big one and addresses part of the insecurity of property rights Professor Taylor mentioned.  A lot of this enforcement so far has been criminal enforcement against counterfeit goods, but increasing enforcement capabilities through less bureaucracy in the court system for civil enforcement and removing corruption from registration agencies are additional approaches.  Caroline Ncube’s IP Policy Reviews are a great resource to help us identify additional areas needing further improvement.

If the current “rise” is really just the balloon of Africa being blown sky high by the gusty winds of the BRIC countries’ whims, let’s switch it to a hot air balloon powered internally by our own needs, creations and developments.

Friday, 14 November 2014

Scholarship Opportunity for Particular Countries

Via Sean Flynn and the Global Congress on IP and the Public Interest comes an announcement particularly relevant for our readers and friends in Congo DRC, Egypt, Eritrea, Equatorial Guinea, Ethiopia, Libya, Republic of Congo, South Sudan and Sudan*.  The Civil Society Leadership Awards (CSLA) is currently accepting applications to earn a scholarship for a fully-funded Master’s degree, including an LLM in IP.

From the CSLA announcement,

The purpose of the Program is to directly assist future leaders in countries where civil society is challenged by a deficit of democratic practice in local governance and social development. Awards are available for MA degree study in the following fields at universities participating in the CSLA program.

There’s a full list of participating universities and programs available on the application page at https://civilsocietyleadershipawards.submittable.com/submit/33850.  One school that is definitely offering an LLM in IP is Washington College of Law at American University in Washington, D.C.  More info about their program here. This Little Leo didn’t find other schools offering exactly this degree on her brief glance/click-through, so interested cubs should check into individual schools if for more information on a particular institution.

For full details on the scholarship, see here (note that this is a google drive hosted document).  Applications are due 15 December 2014 for study beginning in summer 2015.

*There are also non-African countries eligible; see the civil society leadership link above for a full list.

Monday, 10 November 2014

Keyword Advertising - a few seats still available

This week's Breakfast Seminar covering online advertising hosted by this Leo through his firm as part of their Sandton Office opening promotion, coincides with the recent Clearvu decision (Cochrane Steel V M-Systems).

Gareth Cliff has kindly agreed to get a panel discussion going on the decision and it should be fun.There are a few seats left but it's not a breakfast - 18h00 for the lively discussion featuring attorney Ian Learmonth, digital specialist Cameron Mcnaughton and chartered marketeer Jason Cleghorn (who, by the way, used to market Ferrari) ...



In case the link does not work try www.adamsadamsip.com

IP policies in Africa no. 39: Rwanda

Much has been written about Rwanda on Afro-IP (see here, here and here for recent examples). By all accounts, Rwanda's IP policy, 2009 (full text here) is impressive. One of these is Kaitlin Mara's IP Watch article, entitled "New Rwanda IP Policy Taps Information For Development" (available here). Having read the policy, this Leo is persuaded by the good reviews. However, one issue remains,  that is the big I - implementation.


The policy includes an implementation time frame which scheduled the completion of all specified activities by the end of 2011. For example, joining the African Regional Intellectual Property Organisation (ARIPO) by February 2010 is listed as an activity under the rubric of 'Facilitating access to IP-based essential goods and services especially in the health and food sectors.' Rwanda joined ARIPO in 2011 (see here) where developments pertaining to ARIPO's proposed PVP Law have attracted some criticism (see here and here for examples).

The national IP policy also provides for impact assessment and  periodic policy review. According to clause 7.5 of the policy the first impact assessment and review  had 'to be carried out two (2) years from the time of the launch of the Policy (2011). Thereafter the assessment and review should be carried out every four years with the third impact assessment and review timed to coincide with the end of Vision 2020'. This Leo was unable to find copies of these assessment and review reports. However, that is not to say that they were not done. The policy has not been updated since its adoption which would indicate that the assessment and reviews have not indicated that any changes are required. 

Wednesday, 5 November 2014

IP policies in Africa no. 36 - 38: Namibia, Niger and Nigeria


Namibia's WIPOLex entry (here) does not list a national IP policy. However Darren's post (here) alerted Afro-IP readers to recent developments relating to Namibia's new IP legislation. In 2012 the country promulgated the Industrial Property Act  (available in full here) which will come into force once implementing regulations are in place. Namibia has also introduced a new IP administrative structure, the Business and Intellectual Property Authority (BIPA), although the BIPA Act  has not yet been passed (see media reports here and here).


Niger is the only LDC amongst the three countries reviewed today. The country's WIPOLex entry (here) does not include a  national IP policy. This Leo was unable to unearth any  information about a national IP policy formulation process in Niger. It is more likely that any such development will emanate from OAPI, of which Niger is a member.

Nigeria's WIPOLex entry (here) makes no reference to a national IP policy. However, according to a 2012-2013 WIPO report (here) a policy formulation process has been launched. Presumably, a national IP policy will be finalised soon. The country's Science, Technology and Innovation (STI) Policy, 2011 (available here) deals with IP, in clause 3.4. The clause begins with this restatement of  the usual utilitarian rationale for IP protection:
"There is need to create and protect Intellectual Property Rights (IPR) and give recognition to creative Nigerians in order to stimulate the development of inventions as well as create wealth for IP owners and country" (sic). It then proceeds to set out  the following strategies in clause 3.4.3:

i.Ensuring adequate intellectual property recognition, promotion and protection of
creativities, traditional knowledge, indigenous technology and other intellectual assets.
ii. Building local capacities in intellectual property management for effective transfer of
technology.
iii. Promoting a sustainable culture on intellectual property at all educational levels [This Leo is not sure what this means].
iv. Establishing and strengthening Technology Transfer Offices for effective management
and utilisation of Intellectual Property Rights in the National System of Innovation.
v. Providing appropriate incentives for creativity and innovation to stimulate creativity and
innovations.
vi. Developing a viable IP policy especially regarding royalties and ownerships mechanism
for equitable distribution of benefits accruing from inventions, traditional knowledge,
biodiversity resources and innovations among stakeholders.
vii. Establishing, regularly updating and facilitating access to intellectual property data bank
and portals.
viii. Ensuring a dynamic development of the IPR system to address new and emerging
creativities including initiating when appropriate, the enactment and review of IP laws
to incorporate all aspects and issues relating to plant breeders rights, traditional
knowledge and genetic resources
ix. Encouraging partnership with International IPR systems and organisations such as
WIPO, ARIPO, OAPI,USPTO, SIPO, JPO.
x. Supporting the development of IP assets through incubation and commercialisation
processes.
xi. Developing the required human capital to protect and enforce IP legislature and
standards.

Of these, strategies vi and ix are of the most interest to this Leo. The first (vi), because its promise of an IP policy to follow and the second (ix) because of its reference to ARIPO. As many  Afro-IP readers know, Nigeria is not an ARIPO member but has observer status. One of the oft-repeated regrets about ARIPO is the fact that Nigeria and South Africa are not members. Indeed it has been said that PAIPO (the proposed Pan-African IP organisation) ought to be formed to net these big economies... but that's a debate for another day. For today, this Leo is happy to sign off with her rather slim pickings of IP policy developments in Namibia, Niger and Nigeria. 

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See Kingsley's overview of Namibia's official IP websites here
See Kingsley's overview of Niger's official IP websites here
See Kingsley's overview of Nigeria's official IP websites here

Tuesday, 4 November 2014

SAIIPL Dinner (Saturday) and AGM (tomorrow) - be there!

On Saturday evening this blogger had the pleasure of attending the SAIIPL annual dinner held at Silver Lakes (yes, the place near where Oscar shot Reeva). Sat between SAIIPL organiser extraordinaire  Marie-Louise Grobler and fun members of the growing firm Bredenkamp Attorneys, I learnt many things.

The first and most important for members of the Institute is that the AGM is tomorrow Wednesday 14h30 at Irene Country Club. You won't get any shootings but you will be guaranteed a lively agenda. The Institute is one of the largest and most important organisations for IP on the continent with a 300 strong membership. But it needs you.

Secondly, it is clear to me that very few SAIIPL members attending INTA will be staying at the Sheraton who had, just a week or so before the black tie event on Saturday apparently cancelled the booking for a wedding of the rich and famous. We got bumped and many had to cancel bookings at the hotel. It's at times like this we need to look at the Institute's profile, I mean why are we getting bumped? :). I believe it is agenda item 2 at the AGM. Be there.

Thirdly, did you know that Marie-Louise pilots helicopters for fun and arrived at the dinner having just shot 83 on the golf course!? This is how she keeps sane managing 300 members, a host of sub committees and helping the Institute to remain relevant, something she explained to me has become quite a task over the last 10 years as the Institute's views have recently been shunned by government. I think this is item 3, related to item 2. Be there.

Fourthly (is that right?), for those who don't know Bredenkamp Attorneys (who embraced me as one of their own at the table, figuratively I mean), they have just recently lured Brian Wimpey (ex head of IP at Norton Rose) to bolster their services, now offered through offices in both Pretoria and Sandton. They are a bit different. Brian wears his trade mark earring and used to have parrot, and Karel does not mind fixing pumps at his farm when not drafting or litigating on patent specs. I am sure they will be represented at the AGM. So be there!


Brand Pretorious
Finally, anyone who didn't think that key note speaker on Saturday, Brand Pretorious, was not simply outstanding, probably did not attend the dinner. His talk was the best I have listened to and whilst that may not be saying much, since I am writing this post I felt like saying it! Well done Adelhart for getting him there. Brand won't be at the AGM tomorrow. But you need to be.

Hope to see you there.

Wednesday, 29 October 2014

South Africa CLEARVU ruling out today - keyword advertising

Cochrane Steel had sought to interdict M-Systems for passing off because it bid on CLEARVU as a Google keyword generating adverts for its own products. The court held that where the use is solely as a keyword (i.e. it is not visible in the advert triggered) there is no likelihood of confusion or deception and therefore passing off does not occur. 

M-Systems bid secure
The court also rejected an attempt to establish “leaning on” as a new species of unlawful competition. The interdict application was rejected and costs were awarded to M-Systems. The decision was handed down this morning in the Gauteng High Court (Johannesburg) by Judge Nicholls.

Timo Meintjes of M-Systems is “pleased with the decision because it promotes choice and competition which are good for the consumer, especially when there is no likelihood of confusion which the Judge found to be the case

Yours truly and Ian Learmonth who acted for M-Systems provide further legal commentary here. Background to the decision can be obtained here

A discussion of the case will take place through an interview with Gareth Cliff at CliffCentral studios on 13 November at 6pm. If you want to register please email us here. Spaces are limited so please hurry.

Notes:

The case is important because:

·         it is the first case in Africa on whether the bidding on a competitor’s trade mark for keyword advertising is unlawful, an IP issue of much national and international debate
·         it provides further clarity on the scope of passing off, in particular that the concept of “leaning on” is not part of our law and that keyword bidding (without more) is unlikely to be trade mark infringement
·         for Google, it supports their advertising model for South Africa
·         it is of interest to all brand owners that use a website or other online marketing platforms

Take home points for brand owners are:

·         Bidding on a competitor’s trade mark as a keyword is not generally unlawful unless:
o   There is a likelihood of confusion eg counterfeit site or there is use of the mark in the text of the sponsored link or advert which leads to confusion
o   The trade mark is registered and well known, and the owner is able to establish that there is an unfair advantage taken, or dilution can be shown
·         Legal advice should be sought if a competitor’s trade mark will be used for keyword advertising
·         Brand owners need take steps to combat the risk of aggressive adwords campaigns by competitors when formulating their marketing strategies

The case is open to a request for leave to appeal. Link to the judgment here.

Tuesday, 28 October 2014

Ebola & IP, Adwords decision

It did not take long for an article to appear seeking to blame intellectual property for perpetuating the Ebola crisis affecting West Africa, and here it is: "Ebola Vaccine Delay May Be Due To An Intellectual Property Dispute":

"For the past six weeks, about 800 to 1,000 doses of an experimental ebola vaccine have been sitting in a Canadian laboratory instead of being dispensed to West Africa. The delay, it would now appear, may be on account of an intellectual property spat."

The article has attracted no less than 3000 FB likes, 73 comments and 15 top of class stars! But what unfortunate rubbish it is.

The piece stirs and seeks to capitalise (rather successfully it would seem) on two emotive issues (IP & the lack of access to drugs & the ebola outbreak) without a proper analysis of whether in fact there is a relationship between the two. It simply alludes to a connection and lets the groundswell begin on what the author suggests is "epidemic profiteering [caused by the patent system]" but with no real support for his view.

Fortunately not all commentators have agreed with him. In fact Catherine Saez of the excellent IP-Watch has penned several more balanced articles. Some of these were published well before Dvorsky's opportunistic outcry, which rather strangely does not mention them. Unfortunately, Catherine's articles do not appear to have reached as many as Dvorsky's piece has, attracting just a handful of comments but such is life on an IP blog. Hopefully, this post gives them just a little more air.

And, to a completely different IP issue, news just in is that those who have been following the Adwords dispute in RSA can expect to receive a judgement summary tomorrow.


Friday, 24 October 2014

India investigates Mr Cricket software over IP misuse

As Hashim Amla completed his 16th ODI ton within the last few hours in what looks to be an easy victory for the South Africans over New Zealand (currently 90/5 chasing an imposing 289), Hashim's picture appears in The Indian Express under the heading Bangalore Cops Probe South African Cricket Team's Analyst

Hashim is pictured alongside software analyst Prasanna Agoram, the performance analyst of the South African cricket team to whom he dedicates a triple ton in England. According to the article, Mr Prasanna who recently licensed his software tool Mr Cricket to Cricket South Africa, is being investigated for breaching copyright and know how laws in India:

Prasanna
"In the first of its kind case in India since the emergence of computer analysis of cricketers as a key coaching tool, cyber crime police in Bangalore are investigating a top performance analyst with the South African national cricket team for alleged theft of proprietary coaching software belonging to a company run by a former India and Karnataka cricketer."

We are seeing more and more of these types of cases (see here and here, for example) and it has been apparent from the audience attending these Breakfast Seminars that the protection of know how and software is increasingly of interest. 

Software, is of course, largely protected by copyright and contractual relationships regulating confidential information and termination of employment (eg restraints of trade), and occasionally a smart patent lawyer can obtain patent protection. However, because of:
  • the difficulties in determining who owns copyright in software (eg establishing who did exercise control under South African law, for example), 
  • showing proof of copying (re-engineering is generally acceptable and it can be difficult to obtain evidence of copying) 
  • NDAs and employment contracts are often badly drafted or not entered into at all; and
  • courts can be expensive and understood to be risky
the perception (at least in South Africa) is that very little protection exists for software. The reality though is that proper agreement work regulating ownership and proper advice on IP structuring within ventures can save a tremendous amount of time, cost and effort when things go wrong (which they often do as is illustrated by The Indian Express). 

There is also strong protection under the Counterfeit Goods Act for software piracy that is often overlooked as a means of obtaining evidence of copying and quick relief against copying. In other parts of Africa, eg Kenya and Nigeria specific copyright enforcement structures have been set up and have been very effective in protecting software.

It will be interesting to see what happens in India, reporting on the first ever case of its kind. If anyone has any more information, please share it. This is not the first time this blog has covered cricket related technology. For long time readers they may remember this post and the series of posts that followed. Have a good Friday. New Zealand now almost all out. Damn good software that is.

Wednesday, 22 October 2014

Search tools gradually open for Africa

From the desk of MIP's managing editor James Nurton comes news that Tunisia is the latest country to allow access to its trade mark database to TMView which now allows searching of "almost R24.5 million trade marks". You can read more about the development here.

Afro-IP notes that Morocco is the only other African country on the TMView list which is dominated by Europe and North America, and includes Russia.

Although competitor search tool Saegis offers access to a greater number of trade mark records in Africa, it is not free, unlike TMView.

My own experience is that whilst the search tools are very quick and useful, in many African states a physical check of the actual register is still required to rely on the information, constraining users to unfortunately spend more time and money. This is changing slowly as more and more registries go online.

Tuesday, 21 October 2014

RSA: National Summit on Intellectual Property (IP) and Access to Medicines

Yesterday (20 October 2014) the TAC hosted its National Summit on Intellectual Property (IP) and Access to Medicines  (see its report on the summit here). An open letter to the President and the Minister of Trade and Industry was handed over to government representatives at the Summit. The letter is available in full here. The letter and summit remind us all once again of the urgent need to finalise the national IP policy and to thereafter effect some meaningful change to patent law.  If I were to sum it [pun intended] up in one phrase, I'd say 'where is the national IP policy?

Thursday, 16 October 2014

Upcoming Events for Africa’s IP Gurus

Two IP events relevant to Africa recently wandered onto this Little Leo’s hunting grounds.  For those who have the inclination and ability to travel, these are worth checking out.

Uganda

Open Air booksNext Monday, 27th October, the Uganda Christian University and Center for Health Human Rights and Development (CEHURD) as a participant in the Open AIR project are presenting a public lecture on Intellectual Property and Innovation in Africa

The program will feature world renowned experts and Open AIR researchers Dr. Jeremy de Beer and Dr. Chidi Oguamanam, both coming from the University of Ottawa in Canada.  Both are also contributors to the Open AIR books Innovation & Intellectual Porperty: Collaborating Dynamics in Africa and Knowledge & Innovation in Africa: Scenarios for the Future, which were released last December at the Open Air conference in Cape Town. (Afro-IP posts on the conference here.)

The lecture is from 2pm – 4pm Monday in lecture room (M3) at Uganda Christian University Mukono.  If you are interested in attending, please RSVP with Ms. Primah Kwagala at kwagalap@gmail.com.  There is a book launch event the following day, 28 October at Protea Hotel Kampala from 9am – noon.  Tickets for the book launch are available through Eventbrite.

Geneva

WIPO, WHO and WTO are collaborating on a program covering Innovation and Access to Medical Technologies – Challenges and Opportunities for Middle-Income Countries on 5 November.  This all-day event (8:30am – 5pm) will cover plenty of hot topics, including Ebola, trends in medical technologies, and challenges in ensuring access to medical technologies.  Full pdf schedule here.

Since roughly half of the countries on the continent are classified as middle-income countries in some way (one list here), this program could be relevant to a number of Afro-IP readers.  It’s also nice to see the big organizations collaborating together to discuss important issues.  Registration is open until 3 November through the WTO site.

 

If any readers are able to attend either of these programs, we’d love to hear reports back about them.

Wednesday, 15 October 2014

Seychelles Industrial Property Act inching closer to mattering

Seychelles enacted a new Industrial Property Act about 6 months ago and it is now available for your perusal.  It is not yet in effect, though, so don’t start relying on it yet.  The new Act is available here in a delightfully nostalgic looking pdf. Not great for searching, but excellent for reminiscing about long hours in the library.  For those more interested in usability than nostalgia, the version submitted to WIPO is searchable.

The Act covers Patents, Utility Models, Industrial Designs, Integrated Circuits, Trademarks and Geographical Indications (combined in the same part), and Unfair Competition.  The Act includes enforcement provisions for both civil and criminal enforcement.  According to Inventa International, the new legislation is in preparation for Seychelles to join the WTO.  The purpose of the act certainly seems in line with the purpose of IP purported by TRIPS:

AN ACT to provide for the adequate protection and enforcement of industrial property rights in order to encourage local inventive and innovative activities, stimulate transfer of technology, promote foreign direct investment, create competitive business environment, discourage unfair practices, enhance free and fair practice and thereby foster socio economic development and for matters connected therewith or incidental thereto.

Here’s a great opportunity.  Many of the goals listed above are measureable.  Since the Act is not yet in effect, we could get some baseline numbers for current foreign direct investment amounts and number of existing technology transfer projects and compare those down the road at the 5, 10, 20, etc. -year points after the 2014 Act goes into effect.  Then we can analyze whether TRIPS-level IP laws really do increase all these things.

In the meantime, we’ll settle for covering some aspects of the new Act worth mentioning. 

Patents

Plants, micro-organisms and natural substances are not patentable; neither are business methods. The Act follows the first to file rule, however applicants who have already applied for a patent in a WTO member country can receive right of priority (See Sect. 13).  Patent terms are 20 years from date of filing and annual fees are due (yes, every year) to keep the patent valid.

The Act provides for compulsory patent licenses in the cases of public interest, non-practice (“insufficiently exploited in Seychelles…after a period of 4 years”), anti-competitive practices, abusive licensing, and needs of a subsequent patent. (Chapter 5.)

Industrial Designs

Industrial Design registrations are valid for 5 years with the possibility of 2 additional 5-year renewal terms.  The same compulsory licensing provisions for patents apply to Industrial Designs.  Changes in ownership must be registered in ordered to be enforced against third parties.

Trademarks

The Act provides for right of priority for trademark registrations, as with patents.  Three-dimensional marks can be registered, and there’s provisions for what to do when the mark cannot be visually perceived, which suggests that sound and scent marks may be registerable.  Trademark registrations are valid for an initial term of 10 years with renewals available at 7 year intervals.