ProBatter: The Last Instalment

Following our discussion last week surrounding the registered rights which ProBatter hold for its invention, it is now time to turn our attention to the unregistered intellectual property rights.

These appear to be limited to copyrights and personality (image) rights.

It is clear that there will be copyright in the broadcast and images of the bowler. The question which arises is: where do the images come from? In all likelihood the images are licensed from a broadcaster such as Sky or SuperSport. It would be interesting to study licensing agreement to see whether any restriction is placed on the use of the images. The view of Media law experts is that standard agreements of this nature will not place any limit on the further or ancillary use of the images, and the use should therefore be permitted.

The logical solution from ProBatter’s point of view is to shift the obligation of obtaining the requisite images to the purchaser. In this regard, it would be interesting to hear comments on whether this use of the images is any different from recording a match for later video analysis – something which every professional sport team in the world does.

The next issue is whether the bowler has any rights in either the display of his image or in the bowling delivery itself?

In my opinion the answer will once again lie in the contracts. Although there are certain personality rights which the bowler holds in his image, it seems likely that these rights would have been transferred/licensed to the original broadcaster, and depending on the scope of rights granted, the ancillary use may very well be permitted. The view of Media Law experts is once again that standard agreements will not prevent such use of the bowler image (at least not under South African Law).

The short answer is therefore that the bowler is not likely to have any rights which may prevent ProBatter from using his image and bowling action. Any alternative view or debates will be welcome, especially from a US and English Law point of view.

This is the last instalment of our ProBatter series of articles. Good luck to the teams taking part in the Cricket World Cup – we know that at least the English and Kenyan teams have used the ProBatter device during training in the last year. From those teams’ first round performances one would not have guessed it. Or maybe the English team just did not have footage of the Dutch bowlers.

Johan Nortje: Update - man gets 22 years

Kamini Padayachee of The Mercury reports that one of the men found guilty of murder of Johan Nortje - a police officer reponsible for policing Durban's harbour for counterfeit and smuggled goods - was sentenced to 22 years in jail by Judge Piet Koen. The full article here. For previous posts on this story click here.

More on Probatter

Further to my introductory post of two Fridays ago, brief search revealed that Probatter holds registered trade mark rights for its PROBATTER device in the USA, but not in the CTM, UK, Australia or South Africa. Although searches were not carried out, it is unlikely that trade mark registration will exist in ARIPO or any of its member countries.

ProBatter further have a number of patents for the machine, with the main one seeming to be held under number US2001006064 (A1) entitled Pitching system with video display means. A copy of the patent is available here.

The main claim of the invention reads:
‘…A pitching system including:
means to propel balls interchangeably at different speeds and rotational velocities to different locations;
means to visually display a moving image of a pitcher; and
means to synchronize the propelling of said balls with said moving image…’

A rather interesting debate may be formulated around the claim, and whether it relates to a bowler or a bowling machine in a cricketing sense at all. Pitching and Bowling are two vastly different disciplines practised by vastly different athletes, it therefore stands to reason that a pitching system and a bowling system must be different. If this argument was to succeed, this patent will not protect a bowling application at all!

I do however admittedly have limited experience in patent interpretation and any input by the wordsmiths in the patent world will be appreciated.

This patent appears to have been extended to Australia, Canada, China, the EPO (European Patent Office), Japan, Mexico and of course the USA.

As tends to be the case with many of these US based inventions, Africa has been completely ignored as a potential market – whether rightly or wrongly remain to be seen. It is also interesting to note that India, Pakistan, Sri-Lanka and Bangladesh have all been ignored. Anyone who has watched cricket in the last 5 years (and who are familiar with the UDRS (Umpire decision Review System) fiasco) will know that the BCCI (Board of Control for Cricket in India) hold all the aces and subsequently all the money in cricket.

If one considers that the broadcasting rights of the IPL (Indian Premier League) were sold for US$ 1.026 billion and the brand is reportedly valued at US$ 4.13 billion, this may have been an error in judgement by ProBatter, unless of course the bowling application was never foreseen. (Note: the above figures may be based on the opinion of Mr Lalit Modi, in which can a certain tolerance may need to be applied)

The question of whether the remaining unregistered rights (if any) in the system may be enough to prevent a clever entrepreneur from manufacturing the machine and selling it in unprotected jurisdictions, is moot. Next week I will discuss certain key issues regarding this matter.

On a less serious note, with the Wold Cup starting tomorrow, is anyone brave enough to venture a prediction? Can the Aussies do it again? Will the favourites (India) send that enormous country into ecstasy? Will South Africa…c…c…conquer? Or will Pakistan spring a surprise?

Nigeria Develops Own IP for Voter Registration

Afro Leo usually discusses changes in IP laws or interesting cases dealing with a suspected infringement of someone’s IP, but today Afro Lea has an opportunity to highlight a different kind of IP development from Nigeria: the creation of new intellectual property for Nigeria’s voting registration system.

Nigeria’s voting system has come a long way in the last decade. Photo: Election in Nigeria 1999

Nigeria’s next big election is coming up in two months and the country is getting ready by registering its eligible voters.  A new voter registration system was recently put into place; a new system where both the software and hardware have been developed in Nigeria.

Nyimbi Odero built the registration software using a Linux operating system.  Since Linux OS’s are released under open source licenses, Nyimbi was able to develop the software without the huge expense of licensing fees for every computer running the software.  Al Jazeera estimates that this move saved Nigeria hundereds of millions of Naira.  Overall, the combined savings from developing the software in country and having it run on Linux is estimated at more than USD$100 million.

Hardware for the registration process is also being built in country. Lagos-based company Zinox has put together over 80,000 computers for collecting the registration data. 

Afro Leo is always excited to see African intellectual property for  African intellectual property laws to protect.  In the words of Zinox CEO Leo-Stan Ekeh, “Africans are taking control and this is what civilization is all about.”

Full Al-Jazeera report (video).

South Sudan: one to watch

Contributing to the OBSCURE IP Group on LinkedIn (here) Robert Cumming writes:

"South Sudan

The creation of South Sudan as a political entity seems to have gone smoothly so far. By all accounts the country has more pressing issues to be resolved than trade marks law.

However, I would be interested to learn what are the transitional provisions for existing Sudanese registrations and whether these require re-registration and, indeed, when a South Sudanese trade marks office might open".

Afro Leo isn't sure what's happening there either -- and speculation might be premature. However, he hopes that anyone who has any information about IP developments in either part of Sudan will keep this weblog informed.

The Sticky Situation Surrounding Plumpy'nut

Afro-Leo is pleased to bring you a guest post by Isaac Rutenberg, PhD, Patent Agent at Bozicevic, Field & Francis LLP in San Francisco, CA, USA.  If you would like to contact Isaac directly, he can be reached at  rutenberg@bozpat.com.

Is intellectual property always harmful to poor people? Plumpy’nut has been cited as an example that supports the case against allowing patent rights in matters of humanitarian aid. On the contrary, Plumpy’nut is a shining example of how proper use of intellectual property protections could have significantly enhanced international aid and development work.

A recent article in the NYTimes describes the row that has developed over Plumpy'nut. In short, Plumpy'nut is a revolutionary peanut-based product with the potential to end or significantly reduce severe acute child malnutrition. Developed by Dr. Andre Briend, a "crusading pediatrician" who became tired of traditional (frequently unsuccessful) solutions to acute malnutrition, Plumpy'nut is a simple product that is remarkably effective and practical.

So why the row? Turns out that the Plumpy'nut formulation has been patented in 38 countries, including the US, France, and much of Africa. The owner of the patent, the French company Nutriset, appears to be bent on commercializing not just the miracle product but the entire process of combating acute malnutrition. Nutriset and Nutriset's collaborators (including a US for-profit company manufacturing Plumpy'nut in New Jersey for distribution to USAID) have defended their approach and their product, taking steps to prevent others from producing similar products. Criticism of Nutriset has been unsurprisingly harsh: non-profits worldwide say that Nutriset is trying to profit on the backs of the poorest and most vulnerable children. Inevitably, there is the claim that intellectual property is to blame for this disaster.

I say, not so fast. The NYTimes article says that Nutriset obtained the patent rights because Dr. Briend "signed a consulting agreement" with Nutriset after developing Plumpy'nut, since he "never knew anything about manufacturing food." This is somewhat vague, but according to a United States Patent and Trademark Office database, Dr. Briend and a co-inventor assigned (i.e., sold) the patent to Nutriset. This left Nutriset entirely in charge of the patent – Dr. Briend has no say in how it is used.

Had Dr. Briend kept control of the patent, things might look very different today. If his intentions were truly humanitarian, he could have used the patent to benefit the public in much the same way that open source software uses copyright protection. Contrary to popular belief, open source software is protected by copyright. The copyright owners (e.g., the software authors) have simply said that they are willing to grant an open license to anyone who would like to use the software, subject to some conditions. One important condition is that any advances made on the software must also become open source, so the software continues to improve but always remains freely available for use. If there was no copyright protection of the original open source software code, the open source system would not work.

Similarly, Dr. Briend should have kept his patent, and used it to ensure that anyone can produce Plumpy'nut. In particular, local producers in the countries that need it most would not then be reliant on USAID or the UN food relief programs as their sole source of the miracle product.

Although the entire story may be more complicated, one should not blame either Nutriset or patents in general for these events. The problem is that intellectual property and the implications of certain acts are often not fully understood by scientists and especially by the general public.

Had Plumpy'nut been developed by a multinational corporation that never made any pretenses of putting humanitarian interests above profit, then there would be a stronger case for mandating government intervention to make the formulation accessible to all. But this appears to be a case where one individual could have taken steps early on to secure patent rights and ensure universal availability of a life-saving miracle product.

Nortje Update - will the real perpetrator please stand up?

This weekend's papers (see here, here and here) provide an update. Thanks to all who wrote in with the information.

"R30 000 (about $4000). That was the price paid to alleged hit men to murder top harbour policeman Johan Nortje. Details of the murder plot were revealed in the Durban High Court on Friday when one of the men involved in the killing pleaded guilty before Judge Piet Koen."

Whilst it is great news that we have the information revealed in Court and such a quick guilty plea one has a strong sense that there is more to this story. Very early reports spoke about a "businessman" responsible for arranging a "hit" and there is also a need to establish the link between the murder and Nortje's job. Here's hoping Captain Neville Eva, head of the investigation team, is not closing his file.

For previous postings on the story click here.

Call for articles: art and the law

A special issue of the South African Journal of Art History, dealing with the relationship between art/ architecture/ design/ craft/ film/ photography and law, is planned for 2011. This is a peer-reviewed journal recognised by the Department of Education for subsidy purposes. Articles for this special issue will be reviewed by legal and/or art academics in the appropriate field.

From a legal perspective, the following issues may be of interest to artists/architects/designers/craft practitioners:

• Moral rights and resale rights – is protection available to an artist after sale of the artwork?
• Self-plagiarism – when do variations on a theme become mere copies of previous works?
• Legal protection for works of art, craft and architecture in South Africa – how to prevent the copying of such works.
• Inadequate protection afforded to movable artworks by the SA National Heritage Resources Act 25 of 1999 and suggestions for its improvement.
• When may a work of art be reproduced:  issues relating to use for study, reproduction rights, virtual copying and parody.
• Criminal law and art. When is art pornography or blasphemy and can its status as artwork protect it?
• Computer-assisted creativity and its associated legal problems.
• Portraiture and invasion of privacy or denigration, relating to both commissioned portraits and other works where an individual is identified or identifiable.
• Commissioned art and contractual issues. What happens if the patron dislikes the work?
• Collaborative creative works and disputes arising between co-creators.
• Posthumous protection of artworks and inheritance problems.
• Art in a deceased estate and death duties.

Other articles on topics of relevance are welcomed.

The closing date for the receipt of submissions is 31 May 2011.

Please e-mail  submissions to the editor: Estelle A Maré at mare_estelle@fastmail.fm.  Please attach short CV (200 words) and an abstract.

Posted by Jeremy for Roshana

ProBatter - stay tuned for more..

On Friday, Afro-IP's Darren issued this invitation - Probatter - Any Takers? Several readers wrote in with some excellent suggestions and comments and I have copied the email from our guest writer who will be contributing each Friday on the topic, below.

Stay tuned too for some other interesting facts about cricketers, patent attorneys and inventors over the coming weeks. Find out, for instance, how the creator of the Venn Diagram was responsible for bowling out an Aussie batsman in 1909.

A prelude to our mystery guest writer's contributions each Friday is contained is his opening below:

"So, how would you have fared against the Ball of the Century? Mike Gatting facing (a much trimmer version of) Shane Warne in Manchester in 1993: with his first ball in Ashes cricket, Warne becomes an immediate candidate for greatness, and also revives the (then) dying art of leg spin bowling. If he never took another wicket, the man would have died a legend. As it turned out, he ended up taking 708 test wickets, legendary status achieved well before his retirement.

The question is now – would you have picked the Ball of the Century? And more importantly, will you be able to emulate Gatting’s flabbergasted expression (priceless) if you don’t?

With new(ish) technology from the company ProBatter Sports LLC Ltd you can now face that ball. You can also face a thousand Zaheer Kahn in swingers (if you are Graham Smith) in the hope of avoiding ever getting out to him again, or maybe Shewag can face a few Morkel short balls and see if he can clear third man. If you are brave, you can face Donald’s spell to Atherton at Trentbridge in 1998 or Steyn to Tendulkar in Cape Town in 2011 (pardon my bias, it should be clear which flag I will be waving at the upcoming World Cup)

When offered the opportunity to guest write a few posts on Afro-IP regarding the potential IP issues surrounding this technology I jumped at the chance. After all, IP and cricket are two of my favourite topics!

I shall start by commenting on the registered rights which ProBatter hold for its pitching (bowling) machine. In follow up posts, I shall briefly highlight potential further IP implications for the use of this machine including sponsorship, broadcasting and ownership rights in the images, and any rights which the bowlers themselves may have.

I shall end every post with a plea to CSA (Cricket South Africa) to purchase one of these machines and a reel of Zaheer bowling…"

Find out who this is and all the issues around ProBatter IP each Friday for the guest contributions. In the meantime, Warne's "ball of the century"- enjoy

The OAPI Caravan

"Raising IP Awareness in West Africa" is one of the articles just published here in the February 2011 issue of WIPO Magazine. It features an interview with Paulin Edou Edou, Director General of the African Intellectual Property Organization (OAPI), who explains how OAPI is reaching out to members of the public in each of its 16 member states to raise awareness about the economic, social and cultural benefits of effective intellectual property protection.

The OAPI Caravan initiative is described -- and it sound quite imaginative -- as a way of taking the case for IP to the people.

"The OAPI Caravan Initiative is proving to be an effective means of introducing IP to the general public. For any high-profile event in one of our member states, the OAPI Caravan sets up at a local university or marketplace to attract, and engage with, a wide range of people. So far, we have used the Caravan at events in Dakar (Senegal), Yaoundé (Cameroon), Bissau (Guinea-Bissau) and Bamako (Mali), and it has been met with great enthusiasm by young people, students and businesspersons alike. The Caravan enables us to reach a broad public including, most importantly, those who might not have anyone else to speak to about IP. For example, there’s a general perception that if a product is cheaper it’s better, regardless of whether it is genuine or counterfeit. By discussing with the public, we can explain the risks and threats associated with purchasing counterfeit goods. Once they understand this, they are very supportive of our efforts to crack down on such illegal trade.

The OAPI Caravan distributes T-shirts, runs quizzes, and engages with passersby to discuss IP, explain what it is all about and why it is of relevance to them. It’s an innovative approach and, while we will only see the concrete benefits in the coming years, it is proving a cost-effective way of raising public awareness about IP.

We still have much to do, but I hope that over the next five years, we will have succeeded in transforming the IP landscape of the OAPI region. Building broad-based awareness of IP is a key factor in achieving this goal.The OAPI Caravan Initiative is proving to be an effective means of introducing IP to the general public. For any high-profile event in one of our member states, the OAPI Caravan sets up at a local university or marketplace to attract, and engage with, a wide range of people. So far, we have used the Caravan at events in Dakar (Senegal), Yaoundé (Cameroon), Bissau (Guinea-Bissau) and Bamako (Mali), and it has been met with great enthusiasm by young people, students and businesspersons alike. The Caravan enables us to reach a broad public including, most importantly, those who might not have anyone else to speak to about IP. For example, there’s a general perception that if a product is cheaper it’s better, regardless of whether it is genuine or counterfeit. By discussing with the public, we can explain the risks and threats associated with purchasing counterfeit goods. Once they understand this, they are very supportive of our efforts to crack down on such illegal trade".

Afro Leo likes this idea, but he thinks you'd need an entire Continent full of caravans if any sort of meaningful impact is going to be made on one of the most infringement-friendly consumer zones that any vendor of fake products could ever hope to find -- and he wonders whether there is the possibility of any metric to gauge the effectiveness of the OAPI Caravan, or at least some form of follow-up, to see whether it has made an enduring mark or is just another set of footprints in the shifting desert sands.

ProBatter IP - anyone takers?

Cricket is popular on the continent. Not as popular as football, not as popular in OAPI, probably not top of mind in Egypt or Sudan at the moment but entrenched entertainment in many ARIPO member states. Maybe it even says something that ICC laws have been domesticated in many ARIPO countries but the ARIPO protocol has not. I digress.

This blogger follows Jonty Rhodes - a one-time hockey teammate - on Facebook who happens to be helping Kenya prepare their side for the upcoming World Cup one days series. His post today showed some amazing pictures of the ProBatter bowling machine - developed from technology used in baseball - that simulates bowlers to help batsmen prepare against them. It's more than an X-Box and it's about as depressing for bowlers as 20/20, flat tracks and big bats. It's also surrounded by a host of interesting IP issues such as rights in content and performance, sponsor rights, branding, technology transfer, licensing and patentability.

If anyone wants to write a guest post for Afro-IP on this topic please write to afroipmail@gmail.com otherwise Afro Leo may have a go.

You can check out the concept  as photographed and captioned by Jonty at a training camp in Dubai here, here, here, here and here. And if you wanted to know how England won the Ashes in Australia for the first time in 24 years watch the clip below (the ECB deny it but it seems that Strauss and the lads had been facing Hilfenhaus, Johnson and co for at least a year beforehand). And if Daryll Cullinan reads this post I am sure he wont be ruing the cash in IPL as much as the chance to practice (in private) against Warne's flipper!

Investigation Update - Nortje

This blog reported on the murder of Johan Nortje which lead to a call for an urgent investigation by the local police force assisted by Interpol and the World Customs Organisation. The call has lead to numerous testimonials and strong support by anti-counterfeit teams in law firms, brand owners, anti-counterfeiting groups, blogs, trade magazines and individuals from around the world. The voting has reached over 260 in favour of the investigation and a summary of the testimonials can be located here with previous updates here.

Afro Leo with the help of Izabella Panek spent over two hours trying to get in touch by telephone and email with Interpol's HQ, their South African Office, the World Customs Organisation and the KwaZulu-Natal Police Commissioner Monnye Ngobeni whose office heads up the local investigation. The only joy came from Ngobeni's office who referred us to Brigadier Gopaul who informed Afro Leo that "he was not  in charge of the investigation" but he was "responsible for helping to deal with the affairs of Johan Nortje and his family". He explained that  we had to  "be patient" and would not comment on the investigation but admitted  that an "investigation was underway" and that he was aware of the calls from brand owners and the industry. 

The Brigadier went on to suggest that parties interested in making a contribution could do so directly to the family or by assisting with funding for training or facilities of the local office (readers who wish to do so please email afroipmail@gmail.com and we will gladly put you in touch.). Brigadier Gopaul was Johan Nortje's commanding officer and is also currently looking at ways to minimise the risk to individuals on his force.

Afro Leo read, with interest, the efforts of World Trademark Review's Trevor Little in Paris yesterday at the WCO Congress on combating Counterfeiting and Piracy who directed questions at the Secretary Generals (Ronald Noble and Kunio Mikuriya) of both Interpol and WCO about the incident. Both refused to comment on the investigation (which I suppose is one better than refusing to answer our emails and telephone messages). Trevor's post "Enforcement Agencies tight lipped over South Africa murder investigation" is contained here.

In summary, an investigation is taking place but the involvement of Interpol and WCO is unclear. I suppose at least they know about the incident and thanks to WTR for pressing the issue. Gopaul explained that the investigation would unlikely call on Interpol or the WCO unless they felt there was a need to. So we wait. The South African Authorities are under pressure for a full report.