Monday 30 June 2014

Afro Ng'ombe

Sharing in South Africa just got a little easier

CC logo South Africa now has its own version of the Creative Commons 3.0 licenses.  Launched last week, the ZA 3.0 suite is the very final suite of 3.0 Creative Commons licenses to be adapted to a specific country.  It is the third suite of 3.0 Creative Commons licenses on the continent, joining Uganda and Egypt.

Dr. Tobias Schonwetter, Director of the Intellectual Property Law and Policy Unit at the University of Cape Town, headed the Creative Commons South Africa Legal Team in this process.  For more information about the full South African legal team, see the Creative Commons South Africa page.  The licenses were several years in the making and this Little Leo has to admit to being a tad biased in her excitement for their release.  (She was part of the process for these licenses when she worked at Creative Commons and played a role in bringing them to their final release.)

The suite of Creative Commons licenses allows owners of copyright to let other people use their works without having to grant individual permission every single time.  The licenses grant the permissions the copyright owner wants to grant and allow users to quickly gauge what uses are allowed.  There are 6 Creative Commons licenses.  For those who want to use the South African suite of licenses, see the list of links below.  For those who want to use the global 4.0 licenses, visit the Creative Commons license chooser.

  • CC BY – Attribution required for use  This one should look familiar to readers at is the license on Afro-IP
  • CC BY NC – Attribution required for use and use can only be for non-commercial purposes
  • CC BY SA – Attribution required for use and any derivative works must be licensed under the same license as the original
  • CC BY ND – Attribution required for use and user cannot make derivative works without additional permission
  • CC BY NC SA – Attribution required for use, use can only be for non-commercial purposes and any derivative works must be licensed under the same license
  • CC BY NC ND – Attribution required for use, use can only be for non-commercial purposes and derivative works are not allowed
Read More
Jeremy Speres

RSA: Honest concurrent use by a TM licensee rejected


In this trade mark opposition referred to the High Court in Pretoria, local retailer Woolworths opposed an application for the mark JT’S YOUR NAME CAN DEPEND ON IT in class 25 (clothing and the like) by promotions firm KR Agencies.  Woolies relied on confusing similarity with and dilution of its registered marks for JT ONE in class 25, as well as its unregistered rights flowing from its reputation in the JT ONE mark.

It was common cause that the goods were identical and that Woolies’ marks were well-known.  The opposition therefore simply turned on whether the marks were confusingly similar (the court choosing not to address the dilution angle) which the Court found to be the case.

Bread and butter stuff then, until around paragraph 12 when the Court addressed KR’s claim that it had made honest concurrent use (HCU) of its mark in terms of section 14 of the Trade Marks Act and that its mark should be allowed to register accordingly.  For those not familiar with HCU, the provision essentially grants the registry a discretion to register a mark that would otherwise conflict with an earlier mark where the owner of the later mark has been using its mark honestly for a substantial period of time.  For those interested in further reading, Prof. Wim Alberts virtually has the market cornered in relation to HCU discourse – see the articles mentioned in his publications list here for more.

The Court found that KR had not complied with the formalities for HCU applications set out in Regulation 17 in that it had not submitted an affidavit or statement of case.  This is the second time in recent years that an HCU defence has failed on this basis – see the ABEDEX decision reported by fellow Leo Darren Olivier and Katherine Harding here

Nevertheless (and here’s where things get interesting) the court saw fit to consider the HCU defence anyway in case it was wrong regarding the formalities.  The court found that KR could not rely on HCU because KR apparently used its mark under licence from a UK company which had registered the mark with effect from 1997 but who’s registration lapsed before KR filed its own application.  The court relied on sections 38(1) and (2) which essentially provide that use of a mark by a licensee shall be deemed to be use by the owner of the mark.  Accordingly, KR could not claim the benefit of HCU given that, in terms of the foregoing sections, the UK company was deemed to be the user and not KR.

One interesting aspect that the Court did not address but which could possibly also have been raised against the HCU defence is the fact that section 14 (the HCU provision) does not expressly operate against objections based on section 10(12) – unregistered rights flowing from a reputation – which were relevant here.  Section 14 only expressly refers to situations where the earlier rights appear from the register or are well-known marks in terms of the Paris Convention and not section 10(12). 

The authors of Webster & Page (at para 6.17) however feel that the exclusion of section 10(12) from the HCU provision should be of little consequence given that the same factors are considered whereas Prof. Alberts appears to take a counter-view, at least in part (see p 357 of this article).  Given that it’s a Monday morning I'll spare you the tricky details, suffice it to say that it would have been handy to have some judicial guidance on this.


Read More

Sunday 29 June 2014

IPcommentator

Google now implementing the ‘right to be forgotten’ decision

Whilst watching an interview on CNBC yesterday, this Leo picked up a couple of names of interest which he decided to look up. When he entered these names in his preferred search engine, Google, the following disclaimer was displayed below the search results for one of them: "Some results may have been removed under data protection law in Europe". Immediately, he knew that it was one of the watershed moments in the history of the internet - which we’ve all been waiting for since May.

Here is why, as Google explains:
“The recent ruling by the Court of Justice of the European Union ("CJEU") has profound consequences for search engines in Europe. The court found that certain users have the right to ask search engines like Google to remove results for queries that include the person's name. [See paragraph 94 of the judgment. So, not everyone will be granted the 'right to be forgotten'] To qualify, the results shown would need to be inadequate, irrelevant, no longer relevant, or excessive. [A new ‘three-step’ test?]

Since this ruling was published on 13 May 2014, we've been working around the clock to comply. [Well, Google can afford it with its revenues and tax-efficient operations] This is a complicated process because we need to assess each individual request and balance the rights of the individual to control his or her personal data with the public's right to know and distribute information. [Google's in-house and external lawyers will have a lot of case law across the EU for guidance; public interest test and private life (Article 8) are two difficult and facts-based concepts to grapple with

…In evaluating your request, we will look at whether the results include outdated information about your private life. [How long is 'outdated'?. OK, Afro Leo has just provided this example: Katie Price can now tell Google to remove search results for content mentioning her name(s) and that she dated these individuals] We'll also look at whether there's a public interest in the information remaining in our search results – for example, if it relates to financial scams, professional malpractice, criminal convictions or your public conduct as a government official (elected or unelected). [Taking into account the CJEU's observation at paragraph 81. Essentially, individuals such as corrupt public officials will find it difficult to hide their past - though heavy lawyers or online reputation management consultants might do the trick]

These are difficult judgements and as a private organisation, we may not be in a good position to decide on your case. If you disagree with our decision you can contact your local DPA. [Google rightly warns that they are neither a court of law nor the appropriate public authority in charge of data protection, but that they’ll try their best to reach the right decisions or may even forward it directly to relevant DPA. The DPA for the UK will be the Information Commissioner’s Office]

We look forward to working closely with data protection authorities and others over the coming months as we refine our approach. [Hopefully, they'll swiftly assist Google with this headache] The CJEU's ruling constitutes a significant change for search engines. While we are concerned about its impact, we also believe that it's important to respect the Court's judgement and we are working hard to devise a process that complies with the law. [Google is trying to respect the laws of the land. Afro Leo hopes that search engines will remain free forever]

When you search for a name, you may see a notice that says that results may have been modified in accordance with data protection law in Europe. We’re showing this notice in Europe when a user searches for most names, not just pages that have been affected by a removal." [In case you find the 'need' to search for a name from an EU location, you'll most likely see the above disclaimer. 

As this Leo's friend informs him, based on experiment: "it doesn't mean that the individual has actually made a successful 'right to be forgotten' request; it's just that Google has set all successful removal requests, especially those under the simple old Webmaster URL Removal Toolto also display the disclaimer".

By inference, it looks as if Google couldn't just be bothered and decided to just throw everyone (including criminals e.g. here and here) into the same basket; alternatively, they're pretty much admitting that they had an idea, well before this decision, that they were a little bit in breach of EU data protection laws]

In the meantime, click here for the 'right to be forgotten' form.
Read More

Thursday 26 June 2014

Jeremy

INLEX opens in Cameroon

Here's a new development, involving French law firm INLEX:
"After developing continuously its expertise during 20 years in France, INLEX IP EXPERTISE is now recognized on an international level. Spurred on by its founding partners Eric SCHAHL and Franck SOUTOUL, who were involved in many important cases in AIPO and ARIPO areas in collaboration with local attorneys, INLEX has decided to open an office for the support and protection of their customers’ interests in AFRICA.

Because we wanted to be in the heart of the IP activity in Africa, we chose to open our office near the AIPO Office, in Yaoundé (Cameroon): Chapelle Essos, Yaounde 5th arrondissement, BP 25082, YAOUNDE, CAMEROON ..."
INLEX AFRICA's website is here.

This blogger is always encouraged by the opening by foreign firms of offices in Africa: it's a sign that they see prospects of profit, which means that they are happy to invest in Africa in the expectation of getting a good return on their investment.  More importantly, increased competition in any domestic market within Africa helps to keep fees down for users of local IP systems, improves career prospects of IP practitioners there and generally raises the standard of professional expertise all round.


Read More

Wednesday 25 June 2014

IPcommentator

Weak IP regime doesn't inspire investor confidence, says South African Chamber of Commerce


Thanks to allAfrica.com, this Leo has learnt that South Africa has taken a hit on its economic outlook with a downgrade by the rating agency, Fitch. The agency's press release states: "Fitch Ratings has revised the Outlook on South Africa to Negative from Stable and affirmed its Long-term foreign and local currency Issuer Default Ratings (IDR) at 'BBB' and 'BBB+', respectively. The issue ratings on the senior unsecured foreign and local currency bonds have also been affirmed at 'BBB' and 'BBB+', respectively." [Don't they just look like A-level results?]

In summary, this Leo understands that South Africa's rising public indebtedness and social issues were the main reasons for this downgrade. Fitch however ended with an optimistic note that it expects South Africa to address its public deficit, reduce inflation, and continue with its levels of trade. The country's medium-term growth rate potential is said to be around the 3.0% to 3.5% mark. 

To get an upgrade, the South African Chamber of Commerce (SACCI) advises the South African Government against any attempts to weaken the intellectual property (IP) regime. 

Here is what SACCI had to say:

"..Considering the risks identified by Fitch, South Africa has six months to ensure that the outlook and ratings improve by ensuring:

  • Production in the platinum sector picks up significantly by finalising the latest wage agreement. [on which there is breaking news]
  • The government debt trajectory remains downward by cutting any unnecessary consumption expenditure.
  • Investor confidence is strengthened by amending policies that will otherwise weaken property rights (e.g. Intellectual Property Policy, Private Security Bill, Investment Bill)."
Commentary
Afro-IP has monitored IP policy developments in South Africa over the last 12 months or so, e.g. hereherehere, and here. Last May, Caroline Ncube reported that the country's IP policy is nowhere in sight; this currently remains the case according to this republication by infojustice.org. This Leo commends SACCI for standing up for IP - though he couldn't resist saying that he didn't find any mention of IP in Fitch's statement. It may well be that Fitch took IP into account, but this Leo has no clue on how they do their thing. 

The patent system seems to be the main IP right in the firing line in South Africa (perhaps, in all African countries) due to the often emotive access to medicine debate. Currently, this Leo understands that South Africa (again, like many other African countries) appears to offer patent protection with minimal hassle, and is still known as the hub for investors including those looking to protect their IP rights on the continent. Furthermore, a simple look around, online, tells us that South Africa is neither doing that bad with their IP office nor in seeking to protect and/or enforce the rights of trade mark (e.g. here) and copyright holders (e.g. here and here) [Copyright might be the next battleground for civil society groups

Bearing in mind the prominence of the knowledge economyIP rights monetisation, and the existence of international obligations relevant to IP, it may be worthwhile for agencies like Fitch to explicitly give IP the required backing - if they aren't already doing so. This might help reduce the cynical views or negativity about IP. Indeed, calibrating the rights of IP owners and others/public is difficult, and will remain so due to its dynamic nature.

To be fair, South Africa shouldn't be strongly criticised if it's attempting to tackle what Max Planck Institute might see as a homegrown problem. The way the country approaches it is a different matter. In any event, time will tell if or how this news would impact on South Africa's grand plan in the area of access to medicine. Since the country scored OK in this year's Doing Business Report, the government may well want to continue with the status quo to see if Fitch would change its mind - as SACCI hopes.

-----------------------------------------------------------------------------------------------------------------------------------------
Unfortunately, this Leo's economics study at A-levels didn't go that far to enable him dissect the above jargons. So, for those who would like to know the 'real' implications on South Africa, here are some sources for you:

What are the real effects of a downgrade? See here
Can credit rating agencies come under criticisms? Well, like everyone else, 'yes'; see here, here, and here
A summary of the UK's credit rating downgrade in 2013 and its impact is here
A 2011 report on the U.S credit rating downgrade and its global effects is here
South Africans may wish to see if this rating infographics (2011 - 2014) provide some comfort


Read More

Monday 23 June 2014

Jeremy

Nigeria issues first registration certificates for trade marks filed online

Here's some good news from Nigeria. Back in July 2012 the Nigerian Trademarks Registry decided to introduce an online filing/e-filing system.  There was a good deal of scepticism at the time as to whether and, if so, how this would work. However, the prognosis so far would seem to be good:
"As if to prove the critics wrong, the first Trademarks Journal for marks filed online was issued on March 25 2013, and on September 10 2013 a second journal was published. The publications of two journals in the space of a year proved not only that the system was working, but also that it was here to stay.

Finally, in May 2014 the first set of registration certificates for trademarks filed online was issued. The news was welcomed warmly, as it became apparent that the Trademarks Registry had made history. The old system - which had been in use since the inception of the Trademarks Registry - was thus changed, for the better, in the space of only two years".
This blogger hopes that the Nigerian experience will soon be repeated elsewhere, in those African countries which have the most to gain from the sort of business confidence that a fully-functioning trade mark registration system can offer.

Source: "History is made: first registration certificates for trademarks filed online are issued", written for World Trademark Review by Uwa Ohiku and Odunayo Ayorinde (Jackson Etti & Edu, Lagos), 18 June 2014,
Read More

Friday 20 June 2014

Caroline B Ncube

IP policies in Africa no 24. Guinea-Bissau

Still trekking across across Africa in search of national IP policies, this Leo is in Guinea-Bissau this week, where she came up empty-handed, again. It seems that WIPO does not have any current IP Policy initiatives in Guinea-Bissau (see the list of countries where WIPO is seeking to achieve 'National IP policies/strategies and country action plans that are in line with national development plans and priorities' here).
------------------
laws and treaty membership on WIPOLex
Kingsley's review of IP office web-presence here

Upcoming conference in Vienna
In other news, this Leo received an email from Dr. Clemens Appl of the Information and Communication Technology Law & Intellectual Property Law Group at the Vienna University of Economics and Business on an upcoming international Scholars Conference on Intellectual Property Law (S©IPLaw) which they will be hosting on September 16th and 17th, 2014.Clemens writes
       "This conference aims at providing both senior scholars and young researchers in the field of intellectual            property law a forum for presenting (preliminary) results of their scientific work, having intense                      discussions on recent IP issues and obtaining valuable feedback for their further research. S©IPLaw              primarily addresses IP issues within the European legal framework, but it is not limited to European                law. In fact we also invite researchers from overseas to get new perspectives and an overview of IP              issues from outside Europe."
There you have it, Afro-IP readers would be most welcome to bring a fresh African perspective to S©IPLaw.  Further information is available here

Read More

Tuesday 17 June 2014

Afro Ng'ombe

Green Energy/Electric Car Patents for the Taking, potentially

patent Elon Musk, the CEO of electric car company Tesla announced via the company’s blog that the company will not enforce their patents against “anyone who, in good faith, wants to use our technology.”  As a continent that leap-frogs out of outmoded technology and with growing experiments in green energy, Africa could benefit from free-use of such patented technology.

If – that is – African entrepreneurs, inventors, and investors can rely on a blog post from the CEO as a grant of patent rights or at least an enforceable license or otherwise use the patented technology with impunity.

One question is if Tesla Motors’ patents are protected in any African countries.  Many countries on the continent are members of the WIPO Patent Cooperation Treaty, so theoretically it would not have been difficult for Tesla to apply for international patents.  But, would the company have found it worth the time and cost to apply for patents abroad, particularly in Africa?  Of course, even if they are not, any company wishing to export developed technology to America would need to be concerned about rights to use the patented technology.

A second question is would any courts in Africa uphold the blog post as a legally binding grant of patent rights should someone attempt to enforce the patents.  This is particularly important should Tesla be acquired by a less-benevolent owner sometime in the future.

A relevant side-question, how useful are the patent documents themselves to facilitating development of green technology on the continent?  There’s a lot of conversation in development & IP communities about the failure of technology transfer promises in international treaties that have resulted only in the sharing of patent documents without hands-on skill training.

It’ll be interesting to see if any companies, African, American or otherwise, take advantage of any Tesla Motors patents on the basis of the blog post, or if Tesla needs to make the grant of use a little more formal.

A catalog of patents issued to Tesla Motors is available here.

Read More

Monday 16 June 2014

IPcommentator

Why don't generic drug manufacturers rely on IP?

cute coffee hamster
Forget its impact on me,
I need some of that too!
Source: here
Seriously, this Leo doesn't like generic drug manufacturers because they hate IP. This is despite the fact that he relies on generic antihistamine tablets to control food allergy symptoms, when he feels like indulging

It's easy for the public, this Leo included, to reach the conclusion that generic drug manufacturers dislike IP, particularly patents, and that they're the only ones who can save the world's poor, in terms of illnesses, from the shackles of patents. This often arises in the PR wars between opposing interests when we read news report on issues such as access to medicine (especially from a developing country perspective); how India is fighting Big Pharma, or for strong IPRs proponents, how the generic industry (e.g. here and here) is apparently hindering the development of landmark life-saving medicines. ["The last two words, together, sounded like an 'access to medicine' slogan", says Afro Leo]

Well, the 'IP community' (i.e. those who protect/enforce IPRs for generics) and those in the generics business know the truth. Thanks to the self-explanatory title of this article by Managing IP (MIP), this Leo - without access to the entire content - swiftly learns that leading generic drugs manufacturers like Cipla need to protect their invention in India and across the world. [Afro Leo says that African countries should note that nothing lasts forever! India, China, and others alike may be doing all sorts to supply those affordable products now; but soon, they might start demanding respect for the IP in their value-added goods] By the way, is this not the same Cipla that is also known for challenging Big Pharma's patents in India?

As nosy as he is, this Leo went further to validate the point made by Cipla in that article by MIP. First, he discovered that Cipla's 2012/13 Annual Report mentions the need to protect things such as drug delivery systems, formulations and other products or medical devices, at home and abroad. Secondly, a quick search of the UK IPO and USPTO trade mark databases reveals a number of trade marks owned by Cipla - which isn't at all surprising. Finally, he understands that Cipla wants to join the Patents Pool game in the near future. 

Commentary
Are we witnessing something spectacular in that generic folks and Big Pharma are gradually finding common grounds? [Oh dear, Afro Leo tells this Leo that Big Pharma is already in for a piece of the generic pie here and here] If you're still in doubt, how about clamping down on counterfeit medicines? Yes, both parties appear to be on board

So there you have it! Generic drug manufacturers also need IP protection, in one form or another, to thrive.
------------------------------------------------------------
India giving Big Pharma a BIG headache here
Big Pharma may soon start giving India a BIG headache here
India diverting the current patent law regime to another destination here
What's up with Big Pharma? Check out herehere and here
Read More
Afro Ng'ombe

OAPI Joins UPOV

Katrina's radish The International Union for the Protection of New Varieties of Plants (UPOV) announced last week that the African Intellectual Property Organization (OAPI) has become the second Intergovernmental Organization to join UPOV.  (The first was the European Union in 2005.)  OAPI’s membership will become effective on 10 July 2014.

This Little Leo was a bit surprised by this announcement.  UPOV has several version and some members are members of previous versions, most notably the 1978 UPOV, rather than the newest version, 1991 UPOV (or as Little Leo calls it, NewPOV).  UPOV is a convention on protecting plant varieties.  There’s a few differences between the 1978 and 1991 conventions, but the main one is the addition of propagation of seeds as a plant breeder right.  This effectively removes the ability of farmers to save seeds from their harvests for planting.  There is an optional exception in 15(2) that allows countries to allow farmers to replant seeds on their own farms.  This still prohibits seed sharing or tinkering with the seeds.

Whether sui generis protection or patent protection, breeders rights tends to be an area of intense debate in developing countries and the ability of farmers to save seeds from their harvests for the next years’ planting is a key issue.  OAPI aside, there are only 4 African countries that are members of UPOV.  Two are members of 1978 UPOV, Kenya and South Africa, and two are members of 1991 NewPov, Morocco and Tunisia.  OAPI adds another 17 African members to the 1991 Convention.

What does this mean for the OAPI countries? 

A requirement of joining UPOV is that the local laws already conform to the UPOV convention.  Annex X of the Bangui Accord, added in 2006, covers plant protection and matches UPOV fairly well.  It even includes instructions for those wishing to apply for protection in OAPI through UPOV in Article 13 of Annex X.  Annex X includes the UPOV 15(2) optional exception for farmers to plant harvested seeds on their own land (but it does not apply for fruit trees, forests or ornamental plants), Article 30(d).  In short, it looks like joining UPOV will not mean any new laws or changes to existing OAPI agreements.  Whether joining UPOV translates into increased investment or new imports of foreign-created plant varieties is still to be seen.

It turns out Little Leo shouldn’t be surprised at OAPI’s joining UPOV since the Bangui Accord has been in line with UPOV for sometime.  Moreover, knowing that OAPI has included the 15(2) exception has lessened the concern part of the initial shock.

Read More

Saturday 14 June 2014

Jeremy Speres

RSA: How they caught the copyright pirate


Mybroadband ran a short but fascinating piece earlier this week considering how the first person convicted for peer-to-peer copyright piracy in SA was caught.  For those interested in the technical side of the investigation, the piece is well worth a read.  For background on the case and the basis for the conviction, see Dr. Caroline Ncube’s informative post on this blog here.

What I found particularly interesting is how the police couldn't simply rely on linking the IP address used to upload the film to the suspect.  The IP address of the uploader of the film was easy to obtain given that the peer-to-peer network in question makes the IP addresses of uploaders publically available.  The IP address was then linked to this particular suspect by serving a subpoena on the internet service provider responsible for that IP address in terms of section 205 of the Criminal Procedure Act.  However, the police still had to prove that the suspect was the person who used the computer associated with that IP address at the time the film in question was uploaded (i.e. at the time the offence was committed).  This was apparently achieved, at least in part, by obtaining affidavits from residents confirming that the suspect indeed used the computer during the relevant period. 

To those SA lawyers who paid attention in Crim Proc class (I can’t imagine there are too many of you who read this blog), you’ll recall that section 205 empowers a judicial officer to require any person who is likely to have information relevant to the commission of an offence to appear before him/her.  It has also been the subject of much controversy given its use to compel journalists to reveal their sources. 

Moral of the story – if you’re a pirate, don’t trust your neighbours!
Read More
IPcommentator

Dr. Dora Akunyili, former NAFDAC Leader, passes on

We are saddened to learn of the death of Dr. Dora Akunyili, the renowned former Director General of the National Agency for Food and Drugs Administration and Control (NAFDAC) in Nigeria. It is widely reported that she died on 7 June 2014, aged 59, after an illness. 

Dr. Akunyili was known for her tireless and selfless effort in protecting the health of the Nigerian people from dangerous counterfeit products - despite the challenging environment. In her time in office as NAFDAC's DG, she was highly revered, nationally and internationally, and received numerous accolades for her work. Indeed, her legacy, which will live on, was clearly demonstrated to this Leo during an informal chat with James Nurton, at the 2014 Managing IP's Patent Forum. It is incredible that she is still remembered as 'NAFDAC', even after leaving office! 

Our sincere condolences to her family and loved ones at this very sad time. 

May her soul rest in peace.

---------
Some of Dr. Akunyili's coverage in the area of IP
50 Most Influential People in IP by Managing Intellectual Property here (2006)
WIPO's Overview here (2007 - mentioned on page 25) 
Christophe Geiger, Criminal Enforcement of Intellectual Property (2012 - cited on page 137)
Previous Afro-IP's coverage here and here
Read More

Friday 13 June 2014

Afro Ng'ombe

Investing in Africa: Where’s IP in the Party?

Little Leo throwing dollars for African investment
There's plenty of investment dollars to throw around in Africa
Earlier this week, this Little Leo had the opportunity to attend a meeting titled Accelerating Entry into African Markets arranged by Afribiz.  The purpose of this meeting was mainly to encourage American investors to invest in Africa.  Not really applicable to this Little Leo, so she attended more as an interested observer.  Investment tends to be in new products and technologies, and where there are new products and technologies, there tends to be IP.

For much of the morning, there was no mention of intellectual property rights.  This could be taken as a good thing or a bad thing.  It may be that IP is a non-issue because it’s just a given and it is not anymore of a concern for investors or new companies in Africa than anywhere else.  Or, the omission could be taken as a bad sign, that IP is such a big problem it isn’t even worth getting into.

Lumkile Monde, the Chief Economist for Industrial Development Corporation of South Africa (IDC-ZA) spoke about the types of projects IDC-ZA funds across the continent and how the economies of Africa have opened over the past 10 years.  Many of the investment areas he mentioned are hot beds of patent discussion, agriculture and hydro-power particularly.  He also mentioned the need for skills transfer and capacity development at the government level, two concepts very familiar to anyone following the relationship between African countries and the WTO or the WIPO Committee on Development and Intellectual Property.  This Little Leo thought of Mr. Monde’s omission of IP in the talk as a good sign in line with the first option above.

Kendal Tyre, Chair of Nixon Peabody’s Africa Practice and US National Representative for LexNoire (an African Diaspora legal network), talked about considerations for mergers and acquisitions in Sub-Saharan Africa.  Another topic that in practice should be rich with IP issues, transfers of IP assets, licensing, etc.  Yet, there was only one almost-mention of it when Lauri Elliot, CEO of AfriBiz piped in to explain that African countries do have legal systems with regulations and requirements, same as US does, and Americans can’t just “go in and do it.”  IP laws are definitely part of these existing regulations and requirements.

Ms. Elliot also had the following presentation where she discussed how to leverage cities to do business in Africa.  A huge part of this was the importance of face-to-face relations in most cultures on the continent, the needed ability to easily travel to other areas and the concentration of resources and labor found in cities.  Another benefit to leveraging cities that Ms. Elliot did not mention but is relevant to IP is to be near the agencies, commissions and ministries that handle registration and enforcement of IP rights.  It’s often much easier to get things done when you can go talk to the person who needs to do it.

The fourth speaker provided some excellent encouragement that the non-focus on IP was a symptom of good news and not bad.  The head of Business Development for the IDC-ZA talked about the strategic project opportunities – remember, much of the goal here seemed to be to get American investment dollars into Africa.  When he talked about the four largest areas for exportation of companies, two of them were IP sectors: design and branding.  The idea that these industries are top exporters suggests that the intellectual property assets involved have adequate protection to be traded.

Mr. Kipkosgei Toroitich, the Second Secretary of Protocol & Trade from the Kenyan Embassy in Washington, DC also seemed to support the idea that protection of IP rights is not a major concern.  He pitched Kenya as the ideal place to invest, and in his list of benefits the country has to offer inventors, did not mention anything about strength of IP rights.  This could suggest investors don’t see this as a concern that needs to be reassured.

Mr. Ben Todd of the US export-import bank (US EXIM Bank) continued the in-attention to IP as he discussed how the EXIM bank provides capital to companies needing to purchase US exports.  Africa is the largest growing portfolio for the bank and the bank has had a government mandate since the 1990s to focus on Africa.  Again it seemed IP just wasn’t seen as a road block.

And then the US Department of Commerce got up to speak and shattered this Little Leo’s excited dreams that perhaps we’d finally gotten past the ‘lagging-Africa’ stereo-type.  In his list of challenges to doing business on the continent, there it was “IP Rights,” a concern for both US and African companies, particularly in the area of counterfeiting. Le sigh.

Little Leo may be optimistic but is not foolish.  We all know that there are challenges and debates surrounding the implementation of IP Rights, the trade-offs, the relationship to trade and other international support and we could carry on for days discussing why.  But this time she was hoping for some recognition for what does work and respect for the discussions that have happened and decisions that have been made.  Perhaps it is best to take lack of IP talk from the many other speakers, including the US Trade and Development representative who spoke later, as a sign of movement towards this hoped for goal.  Recognition by omission?  It could be a start.
Read More
IPcommentator

Independent generic drugs manufacturing: Can South Africa pull it off?

Not too long ago, fellow Leo, Caroline Ncube, shared the news about South Africa's restructured cabinet, from which this Leo learnt that the outspoken Health Minister is still in power. It means that we should expect proactive health policies in South Africa such as the news reaching us via Independent Online (IOL). The question is: Can South Africa pull it off? [Afro Leo reminds me that South Africa did deliver on the World Cup]
In summary, IOL states that: "....South Africa set to establish its own, independent pharmaceutical plant in the next five years, aimed at making life-saving drugs cheaper for millions of citizens in need." It then elaborates that the the government currently operates local joint ventures (PPP) with Big Pharma to manufacture certain medicines/vaccines (e.g. here) and that a previous plan to establish a local manufacturing plant for anti-retroviral medicines failed last year. Further, it states that the country currently lacks adequate human capacity in pharmacology - something that is being addressed with the help of the 'world's pharmacy', India. In all, the idea behind this grand plan is to increase access to affordable medicines, create jobs, and make the country less dependent on imports. [Who are the largest exporters?]

Commentary
Good health is key to economic growth
It is generally accepted (also see e.g., here and here) that there is a link between the health of a nation's population and its economic development. [Afro Leo understands (also via here) that the UK Government created the National Health Service (NHS) because it believed that a population with good health will drive the much needed economic growth after the second world war] In a recent piece titled, 'Revitalizing Africa's Pharmaceutical Industry', the African Development Bank Group (ADBG) succinctly explained why African countries should invest more in the healthcare sector - particularly, local pharmaceutical capacity. Well, ADBG will be pleased with this news as well as with Morocco - a country looking to become the leading manufacturer of quality generic drugs.

Access to affordable medicines - A global issue
More importantly, this news also reminded this Leo about Max Planck Institute's Declaration on patents. Indeed, with access to affordable medicines, human lives can be saved for a few months or many yearsMany, this Leo included, immediately think of developing countries - especially in Africa - when we see or hear the phrase 'access to medicines'. That would be expected since there are more articles such as this one. However, what is quickly forgotten - often quite rightly when comparisons are made - is that the access to medicines problem also exists in developed countries.

Take the UK as an example: there are news headlines (unsurprisingly, some are inaccurate) such as 'NICE rejects kidney cancer drug everolimus' and 'England's cancer drugs fund under strain as NICE rejects oncology medicines'.[More of these can be found herehereherehereherehere and here] Most argue that the patent regime (due to R&D) plays a role behind these headlines. Could these be used to validate Max Planck's observation that IP (especially, patent) problems are not exclusive to developing countries? 

There are tricky (often moral) questions in the access to medicines debate including the impact of IP rights on affordability. Anyway, if this news is true, time will tell if it's a good idea for the government to be handling this sort of project or to focus on creating conducive and favourable conditions for the private sector to deliver the grand plan. [Afro Leo thinks that governments often like to build and, many years later, hand over to the private sector to enjoy]
-----
To see NICE's decisions on medicines and other related medical products, click here
For a short summary of NICE's rejections, especially cancer medicines, is here

Read More