Wednesday, 6 November 2019


African universities and their role in innovation

Richard Branson once said that if you want to be a millionaire, start with a billion dollars and launch a new airline. Alternatively, you could start an Office of Tech Transfer at a University.

There are two schools of thought around IP and tech transfer in universities in Africa. The first is that tech transfer is irrelevant because most big research universities are public institutions and are therefore not allowed to acquire IP and control research output through the use of IP. The second is that IP acquisition and tech transfer would be a game changer, allowing universities to access the vast resources of global private industries through royalty payments. Neither view is entirely accurate, in general.

(Unfortunately, there's also a third view: what is an Office of Tech Transfer and why should we start one? Although this view is probably more common than the others, it isn't terribly relevant to this post.)

A good friend to this blogger recently pointed out this article about the failure by most Universities in Canada to transfer technologies from university labs to Canadian industries. The conclusion is that patents are not helpful enough, and cost too much, to justify the focus placed on them by universities.

To be sure, universities in Africa don't own very many patents. Even in Kenya, one of the most active countries in terms of patent filings, Kenyan universities own a very small (albeit growing) handful of patents.

This blogger is convinced that the solution to moving technology from African universities to African businesses is not by way of patents, but rather by way of direct partnerships. African universities have R&D resources (the three Ls: labs, labour, and literature) but like most universities around the world are not equipped to commercialize products. African companies don't generally do much R&D but are very aware of local needs/challenges, have some financial resources, and are relatively good at marketing solutions.

Patents are not needed for such partnerships. Ideally, private industry would work directly with university researchers to identify and solve local problems. Industry can cover some of the research expenses in exchange for access to the three Ls and first access to the research outcomes.

This model may not work in highly developed countries with universities that are very well equipped and very good at obtaining large research grants. But in Africa, where universities are available to do research but (very) rarely see the impact of that research, it may be a better model than the traditional OTT model we know from developed countries.

A perfect example of this model exists already - it's called BioInnovate and it is a successful example of industry/academia partnerships in Africa, mostly or entirely without patents.
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Friday, 11 October 2019

Darren Olivier

Cannabis, IP and Africa – 10 things to know

  The cultivation and use of the cannabis plant is ancient. Apart from the market for hemp, dealing in cannabis is still largely an illicit activity. It is only over the last decade that the cannabis market is becoming accessible.

·         A number of countries are now in various stages of decriminalising it with Canada leading the trend, after Uruguay started it. Possession of cannabis is still punishable by death in some countries and is highly regulated in all countries that have legalised it.

·         The size of the African market for cannabis is significant. According to recent data from New Frontier Data, there are 263 million consumers of cannabis products globally of which 83 million are in Africa, or a whopping 32%.

·         Ethiopia, Nigeria and Morocco are the 3 largest markets in Africa. Only South Africa and Lesotho have taken active steps to de-criminalising the cultivation, possession, ownership and use of Cannabis related products. In South Africa, for example, revenue streams from cannabis were a specific feature of the national budget speech in 2019.

·         Hemp is obtained from a strain of the cannabis plant. Hemp contains no or very little THC and is therefore a recognised raw material and has an established market. For example, over 20kg of hemp is contained in a Mercedes Benz C class motor vehicle. The changes in the cannabis market mainly do not include or refer to the established hemp market.

·         The cannabis “market” in South Africa consists of the following broad categories:

o    The established market for hemp that is generally lawful
o    The private possession and use market by adults in private, that is lawful following the constitutional court ruling
o    The regulated prescription market of products by practitioners containing cannabis with material levels of THC and/or CBD content for medical reasons
o    The licensed market:
§  for cultivating and producing cannabis and cannabis resin
§  extracting and testing cannabis, cannabis resin and cannabinoids
§  manufacture of cannabis or cannabinoid containing medicine
§  importation, export and distribution of cannabis containing medicine
o    The market for products bearing a low THP and/or CBD content that have been sanctioned for 12 months since May 2019.
o    The remaining “market” which is illegal.

·         Intellectual property (IP) has a considerable part to play in the cannabis market. Conceptually, IP is a legal mechanism to stimulate innovation by balancing effort with reward in the form of exclusivity or a monopoly. For example, the reward for a new pharmaceutical product containing cannabis is 20 years provided that the owner explain how it works so that other can benefit from either improving it or using it after the patent has expired.  

·         Relevant forms of IP or related considerations include:

o    Registered trade marks – used for protecting all distinctive features such as names, logos, packaging and vital protection for that first to market advantage. Registered for 10 years, renewed indefinitely.
o    Designs – used for all those visual attractive features and functional forms, as well as two dimensional logos applied to packaging. Not a bad option for immediate protection as they can often be obtained quicker then registered trade marks. Can give on 10-15 years protection.
o    Plant Breeder rights – if you are cultivar looking to protect innovation or new varieties then these rights can give you a significant advantage, up to 20 or 25 years depending.
o    Patents – although plants themselves are not protected, infused products could be or methods of extraction or production. A great form of protection for all things new and inventive, including any pharma products, for 20 years.
o    Copyright – a lengthy free form of protection for all drawings, databases, logos, formulations, recipes, training manuals and anything creative reduced to material form.  
o    Trade Secrets and knowhow – keep your methodologies and the secret sauce, secret and it could well last forever as knowhow protection. These are kept that way through agreement obligations and through practical measures.
o    Geographical indications – are relevant for state or regional protection of methods of production or notoriety of regions in relation to cannabis. They work like “champagne” does for sparkling wine or “gorgonzola” for cheese or “rooibos” for tea.
o    Internet names – such as domain names, Twitter handles and Facebook profiles will be relevant but please be aware that online advertising for drugs and cannabis is largely not allowed by most mainline social media channels.
o    Licenses – in many instances, permission for cultivation and the like of cannabis is regulated by the state. Those good enough to secure licenses enjoy a natural scope of exclusivity relative to those that are unable to obtain a license, for the period of the license

·         The use of intellectual property can not only protect market share and entrance but raise the value of the company. These intangible rights require proper management to be effective. They may also need to be enforced.

·         Enforcement of IP rights can take place through the courts, advertising authorities, customs (especially for counterfeit goods) and through strategic use of watching services and, of course, your friendly lawyer.

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Wednesday, 4 September 2019

Afro Leo

UJ's Annual Treat: 24 October - Don't Miss It!

Once again Prof Wim Alberts has put together a stellar program for the annual IP seminar from the University of Johannesburg. The seminars are always packed so be sure to sign up as soon as possible.

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Thursday, 22 August 2019

Darren Olivier

Diversity and Inclusion in IP: South Africa's opportunity

Yesterday, leading publication Managing Intellectual Property, published a Special Report on Diversity and Inclusion within the IP profession following a survey they conducted in July. The report can be viewed in full if you login as a guest subscriber, and it's worth a read. It will resonate with each and every one of you, but if that does not motivate you to read it, the fact that two thirds of in-house counsel advocate a diversity and inclusion policy, as one of their factors in choosing outside counsel, may just. 

For a South African, diversity and inclusion has been a subject of constant discussion for decades. Our unique past has made it that way and there is no respite because it remains as topical and important today. One may think that the South African discussion focuses only race and colour and less on other minority or alienation interests. There is no such thing as a "gender card", for example, but the term "race card" is easily understood, even by primary school children.

However, with the discussion on race and colour come the broader terms - discrimination, empathy, unconscious bias and understanding - which are so vital to dealing with the all aspects of diversity and inclusion. This is why I believe that South Africans can have a major part to play in the worldwide discussion on addressing the issues, so evident in the MIP report. In fact, I believe that South African firms and individuals have a unique opportunity to lead the discussion and debate on this aspect, and they should take it.

This is not to say that South African firms are diverse and inclusive and set the standard for a worldwide model. They, like many others, are simply not there yet. The opportunity lies in the daily conversation. There must be very few places on earth where, on a daily basis, a person will engage with others of such a broad spectrum of backgrounds, ethnicity, race, gender, means and cultures. With some self awareness, empathy, patience and fortitude there is an instant and live opportunity to practice and engage with the challenges and benefits of diversity and inclusion. 

The thing about South Africa too is that the polarising forces that are evident in worldwide politics today are too precarious here, to contemplate. We are destined to have the discussions, whether we like it or not, and with that comes unique advantages that enable us, as South African IP practitioners to develop skills and experience to contribute positively to the topic that the MIP Special Report highlights.

(edited on 23 August to remove a direct link to the Special Report, on request)

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Tuesday, 20 August 2019


Resources on the CAB debate: all the links you need!

South Africa: The Copyright Amendment Bill is presently on the desk of the President awaiting signature. There has been furious debate over the Bill, with supporters and detractors uniting on one of two predominant sides to voice starkly different opinions as to what the destiny of the Bill should be. For those who would like to understand the debate, Afro-IP has compiled this post containing links for further reading on the Bill and those engaging in activism surrounding it.

A group called ReCreate has emerged supporting the Bill. Recreate represents a spectrum of creatives, trade unions and members of civil society evidenced by their home page. It drafted an open letter advocating for the Bill to be signed in its current form and recently convened a seminar on Decolonising Copyright where the need for copyrighted items to be made accessible in a manner suited to the South African context was discussed. One of the most hotly-contested aspects of the Bill is the doctrine of “fair use,” which is introduced by the Bill. Recreate argues that this is in the interest of all South Africans and will not prejudice, but rather encourage creatives. It highlights that “fair use” will facilitate the realisation of rights such as the right to education. A further motivation behind their support of the Bill is that it will make copyrighted works more readily available to people with disabilities, for instance by allowing written works to be printable in braille.

The Coalition for Effective Copyright (“Coalition”) came into existence with a view to prevent the Copyright Amendment Bill from being signed into law in its current form. The Coalition represents creatives in the industry who do not support the Bill. Once the National Assembly and National Council of Provinces approved the Bill earlier in 2019, the Coalition formally petitioned the President not to sign it. A seminar was recently held, entitled “On a Knife’s Edge” under the auspices of Adams and Adams where the Coalition was represented by its spokesperson, Collen Dlamini who moderated a panel discussion where the need to alter the course of copyright reform was discussed from an industry perspective. The Coalition claims that the Bill does not pass constitutional muster on the basis that its prescripts amount to deprivation of property without compensation, that it has been tagged incorrectly, that inappropriate authority has been delegated to the Minister of Trade and Industry, that there has been inadequate public consultation, and that it violates the right to freedom of trade and occupation.

The pattern of passage of the Bill through Parliament prior to reaching the president had essentially 5 prongs. Debate of the Bill took place throughout the process, it was released for public comment, public hearings were held, it was passed by the National Assembly and then the National Council of Provinces. As is customary, the Parliamentary Monitoring Group kept records of the process with the debates and submissions of all parties concerned being made publically available. The Department of Trade and Industry, as the ministry responsible for copyright reform, has also made public all of their submissions on the Bill as well as their responses made to issues raised by the public in the parliamentary hearings concerning the Bill.

According to section 84(2) of the Constitution, the President is faced with a number of choices. He can either sign the Bill into law as it stands, refer it back to the legislature for its consideration and subsequent to this if he deems necessary, refer it to the Constitutional Court for its consideration. As is clearly evident, the proponents and naysayers will not have a meeting of the minds any time soon and it is anyone’s guess what will ensue subsequent to the President making his choice. All that is evident is that seemingly everything in copyright law is up in the air and that a resolution is urgently needed.

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