"Recently a post appeared (here) on the highly excellent blog IPKenya, to which I would like to respond. As background, I am a US patent lawyer now living and working in Kenya.Afro Leo wonders how many practitioners and software designers share or dissent from Isaac's views. If you are one such person, do let us know!
IPKenya comments on a story in Kenya’s Business Daily (here). Safaricom is being sued by the creator of M-Pesa for theft of his idea/invention. No patent was ever filed in Kenya, and none would have issued because Kenya does not allow business method patents or software patents. IPKenya wonders why the Safaricom suit has been referred to the Industrial Property Tribunal. This is an excellent question, and I suspect the case would not stay at the Tribunal for long. An appeal against the lower court’s ruling of lack of jurisdiction should properly be granted.
IPKenya argues that "the industrial property law must be re-examined in light of this mPesa case with the possibility of allowing grants of patents to be issued for business methods.” On this point I strongly disagree.
Having been involved in drafting business method patents, I can report that they are a tragic misuse of the patent system. I can make a very strong case for allowing patent protection of, say, pharmaceuticals or medical devices. I cannot think of any good arguments for allowing software or business method patents. They stifle innovation but, in the end, actually provide little protection for the patentee. They cause entrepreneurs to spend money and time on something relatively unimportant (getting patent protection) at the expense of what is truly important (building a brand name and a customer base).
In the case of mPesa, Kenya is FAR better off without Safaricom having a monopoly on the technology. Safaricom still makes money on mPesa, primarily because they were first to the market and they have a very large customer base. People use mPesa because it is widely accepted and trusted, not because it is the only service available. In fact, the creation and existence of similar services from other mobile carriers has, arguably, caused Safaricom to continue innovating and providing an improved service. This would not have happened had the process been patented.
I have never met a software designer or web developer in the US in favour of such patents, and most say that they hate them. The only people I know who like these patents are the lawyers who write them. I wish that the US would follow the Kenyan system, and not allow software and business method patents. I sincerely hope that they do not change the Kenyan patent law to allow them!
One final note. IPKenya identifies awareness creation as a pivotal role for KIPI and KECOBO (Kenya’s patent and copyright offices, respectively). I have been involved with KIPI and know that they are working hard to educate ordinary citizens, business people, universities, etc. KECOBO is doing the same. Much work has been done, but IPKenya is absolutely right - much more needs to be done. Thank you IPKenya for your work in this area!".
Monday, 28 May 2012
Safaricom, mPesa and business method patents: another view
IPKenya blog has attracted a good deal of interest, as have his Tweets at @IPKenya here. In this Afro-IP post, Isaac Rutenberg takes the opportunity to draw attention to one of Victor's posts and, in so doing, to make a response to it. Isaac writes: