Today is the opening of the 3rd Annual GlobalCongress on IP and the Public Interest, in beautiful Cape Town, South Africa. After an appropriate moment of silence to recognize the passing of one of this (and last) century’s greatest political leaders, Nelson Mandela, the conference moved straight into issues of copyright and patents as public goods, and whether they can benefit the public interest.
|Beautiful Cape Town|
25-30 degrees in summer (sorry Europe!)
[[NOTE FROM THE AUTHOR - before reading on, please see the comments, in which I correct that the arguments set forth by Prof. Ikechi are NOT his actual views!! - In fact his views are best found in this new book, which is available in full and free on-line here (with many thanks for that, by the way)]]
In one morning session, Ikechi Mgbeoji (Associate Professor at Osgoode Hall Law School, York University, Toronto) asked the question whether it is feasible to have a functioning/examining patent office in Africa. Instead, he suggestions, perhaps we can rely on “Rational Ignorance” – i.e., you allow patents simply to “happen” (issue) because it’s too expensive to have decent in-house patent examination. He contended that “bad patents aren’t really as bad as people say. If people think they are bad, they can always go to court. It’s better to have a ‘dirty system’ that stamps patents right away, with a post-grant system, than to spend millions on a functioning patent system.” With all due respect to Prof. Ikechi, this Leo could hardly contain his anxiety at these suggestions (although nearby attendees must have been amused at all the fidgeting and gasping).
“Rational ignorance” as suggested would be disastrous for the commons. Currently, the burden is on the inventor to prove that his/her invention is worth patent exclusivity. Shifting the burden to the general public to prove that a granted patent should not have been granted (though post-grant patent office systems or through court proceedings) removes a hugely important safeguard and essentially means that the vast majority of the public will be at the mercy of such patents. Most (surely over 99%) of the general public will not have the means or the time to go through such burdensome proceedings, and will never try. Given the complexity of patents generally (only lawyers understand them, and even judges often misinterpret or mishandle them), it is highly risky to challenge one in court. So the result will be many (most?) patents that discourage competition and should never have existed in the first place.
In fact, it is not impossible for African countries to examine patents. Kenya has a functional patent examination office (KIPI), and examines many dozens of patents each year in-house with roughly 10-12 qualified examiners. South Africa has been heavily leaning toward instituting an examination system within the next few years (and this Leo strongly supports such a move). And for countries that receive less than a handful of applications per year (e.g., Botswana typically receives less than five), ARIPO is available to conduct the search and examination.
Removing patent examination would destroy a major saving grace that patents have over copyright. Currently, the “default” of copyright is in protection, and a copyright holder needs to actively give away their rights (e.g., through licensing). For patents (i.e., inventions), thankfully, the default is in donation to the public. Only by significant effort can the potential patentee lock down his/her rights. Changing this situation would be done only at great peril to African economies. The cost of a patent examination system is well worth the benefit to society – i.e., the protection of the commons.