The realities of patenting in developing countries

Africa’s art, craft and textiles are unique to their areas of origin. But that does not translate into ownership, in the sense of the ability to commercialise these items globally. These items qualify as “traditional cultural expressions” passed on from generation to generation, as they were created in a local setting to attend to a local need. This makes them public domain.

The intellectual property (IP) system (in a process that is arduous and often daunting even for individuals and SMEs) protects private and corporate property and industrial design through patents, trademarks, copyright, etc. It does not, however, do the same for the collective heritage of past, present and future generations of local communities.

Why this matters?

Kenya, for example, has one of the most active patent offices on the African continent, but only four patents are granted on average each year in a country that is a bustling hub of innovation. In fact, Africa accounts for less than 1 percent of applications made globally – an indication that patent protection is still elementary on the continent.

The lack of patents can be attributed not to a lack of innovation but to a lack of patent expertise in the private sector and a lack of funds to hire expensive patent-drafting services from firms in Europe, South Africa or India. Patent lawyers commonly have undergraduate degrees in hard sciences or engineering and postgraduate degrees in similarly technical disciplines. They also need to be specialists in intellectual property law and have the skills needed to protect innovations via well-drafted patents. Individuals who fit these criteria or experience level on the continent are mainly found in South Africa.

Read: Meet first Ugandan inventor to hold a patent for safety liquid dosing dispenser

This absence of expertise and guidance leaves prospective patentees without access to proper drafting skills, largely diminishing their eligibility.

Without patents, local entrepreneurs, SMEs, corporates and institutions are hard pressed to secure foreign investment, form partnerships and build businesses based on their intellectual property assets.

Is this situation insurmountable?

Nagla Rizk, a prominent Egyptian intellectual property scholar in the area of copyright, argued: “In developing countries poor people frequently find themselves in the dilemma of having to choose between the expensive original and the unlawful copy. It comes as no surprise that the less privileged would have stronger tendencies toward the illegal. Here, the need for novel business models that balance the needs of knowledge creators and users becomes evident, especially given the vast development of enabling technologies.”

Trips – Trade-Related Aspects of Intellectual Property Rights – is a framework that applies to all World Trade Organisation member countries (with variations from country to country) and adherence requires intellectual property laws that largely resemble those of developed countries. This westernised patent regime does not incentivise the current high level of innovation and instead steeps it in red tape, creating an opaque system.

For the average individual, the process is not only daunting but seems unnecessary for the 10 to 20 year period of its validity – not to mention the many who abandon their patents after failing to secure the investment needed to commercialise their intellectual asset.

The prevalence of copycatting also makes it difficult for entrepreneurs to lay out their ideas to register for patents. The resultant culture of secrecy is counterproductive to the process.

Here is some advice to African entrepreneurs: Research as much as possible first, then go for it. Do not hide but tell everybody who cares to listen, “See what I have created, use it, but pay royalties to use it.”