Is the western notion of IP right for poor countries? Should their entrepreneurs be expected to play in the same ballpark with giants such as Google?
In Kenya, where I live and work, the patent office, which is among the most active of patent offices on the African continent, has issued a total of 589 patents since the office opened in 1991. Compare that with the 5,500 patents issued by the US patent office in a single week in July this year.
An even scarier statistic is that, of the 50 or so patents granted in Kenya each year, between zero and five (on average) are granted to local Kenyan organisations or individuals. The remaining patents are granted to foreign firms, most of which are pharmaceutical companies.
The minimal number of issued patents is not due to a lack of innovation or entrepreneurship in Kenya. These are both present in abundance and the type of innovation that I've seen is typically of a kind that would be suitable for patent protection. Instead, the lack of patents is due to a lack of patent expertise in the private sector, and a lack of funds available to hire expensive patent drafting services from firms in Europe, South Africa, or India.
Without access to proper patent drafting, it is difficult for the Kenyan patent office to find applications that are suitable for granting as patents, and the ability of local inventors to obtain patents is severely diminished. Subsequently, without patents, the ability of local inventors to attract foreign investment and partnerships, and to build companies that are based on intellectual property (IP) assets, are also severely diminished.
In patent-laden countries such as the US, Japan and blocs like the EU, it is common for patent lawyers to have science and law degrees. Patent lawyers with similar qualifications are found only in South Africa, in Africa. Accordingly, the skills needed to protect innovations via well-drafted patents are scarce, almost non-existent.
One way to solve this problem is to train more people in Kenya and other countries in Africa in the skill of drafting and obtaining patents. I spend much of my time offering such skills-training but it is a long-term commitment (it can take a year or more) and with very little to show in the short term, there seems little incentive to acquire these skills.
It doesn't take long given the context before one starts asking some fundamental questions: is the western notion of patent rights the best system for Kenya? Could it be that a different system would do a better job of promoting innovation – which is ostensibly the raison d'être of the patent system? Is it reasonable to expect Kenyan entrepreneurs, businesses, and inventors to play in the same patent system with corporate giants such as Google, IBM, and Pfizer?
These are questions that not only apply to Kenya but also to much of the developing world. In a recent article Nagla Rizk, a prominent Egyptian IP 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."
Most countries today (including Kenya) have so-called 'Trips-compliant' intellectual property laws. Trips – Trade-Related Aspects of Intellectual Property Rights – is a framework that applies to all World Trade Organisation member countries and compliance requires IP laws that largely resemble those of developed countries. So although there are minor variations from country to country, the IP laws of developing countries look (or will someday look) like those in the US or Europe. What this means is that there is very little opportunity for countries to tailor their IP laws to meet their individual needs, unless they wish to withdraw from the WTO.
It is often argued that the existence of IP laws incentivises innovation (as the monopolisation of knowledge or products create profits for those who own the IP rights) but considering the low number of patents in Kenya, the current high level of innovation cannot be attributed to incentives offered by the western-style patent regime that is in place.
Copycat businesses are a way of life here, and while they are fatal to some businesses, they are not always (or even usually) an insurmountable hurdle. Consider that M-Pesa, the most successful mobile money transfer system in the world and hugely profitable, must compete with at least three other nearly identical systems.
Despite the benefits of WTO membership and of safeguarding one's intellectual property, the fact is that on balance, the western patent model is not yet helpful to most Kenyan – or African – entrepreneurs. The day may come when this is no longer the case, and in the meantime there is no doubt that more Africans should be exploiting the existing system. Still, the dream is for the day when foreign investment in African-owned patent assets will exceed foreign aid.
*Isaac Rutenberg is director of the Centre for Intellectual Property and Information Technology Law, Strathmore Law School, Nairobi, Kenya. He tweets as @iruten
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