Intellectual property

Intellectual Property: Overlooking What Comes First

The importance of patent rights is usually overlooked in Ethiopia. From the inventors to the government officials, the attention given to the issue has not been satisfactory. This is partly because of the weak implementation of the patent law of the country. The fact that the country is also not a signatory in the international intellectual property law is another challenge which is undermining the efforts of the country in its accession in the World Trade Organization. EBR’s Ashenafi Endale investigates.

Two years ago, Yisak Fereja came up with a new invention that enables users to navigate, monitor and control their cars, stove, and houses electronically. But he did not give much attention to patenting his invention right away.

After a while, he thought about the patent issue because his former teacher made him realize that it will give him the right to exclude others from benefiting from his invention. He then went to the Ethiopian Intellectual Properties Office (EIPO). However, the process had not been easy for him. “I have waited for almost two years. In fact, I almost forgot about it,” he says. “Even after this time, I was expected to deal with more bureaucracies.”

Yisak is not the only one who passes through such hurdles in order to secure a patent. Many Ethiopians with inventions have no patent, either because they have no clue about it or they are discouraged by the rigorous process it requires. Although effective patent protection encourages invention, its importance is usually overlooked, if not, totally neglected in Ethiopia.

Ethiopia included the protection of Intellectual Property (IP) in the civil code introduced in the 1960s, although it was not broad as it covered only artistic and literary works. The civil code acknowledged IP as an element of a business. But this was not enough because of the absence of an institution which would oversee its implementation, insufficient awareness of the beneficiaries and inattentiveness of the judiciary.

After the enactment of the current constitution in the 1990s, ownership rights over intangible property were introduced. Specific legislations were also introduced in a bid to protect IPs. After this, proclamations, regulations and directives concerning patent, copyright and trademarks were put in place over the last two decades. Yet, little is achieved in ensuring the protection of the patent rights in the country. For instance, ever since its establishment 15 years ago, EIPO registered only 400 new inventions, which means 26.6 patents every year. However, only close to half of them are certified. “We know it is an insignificant figure for a large country like Ethiopia. We are conducting various research to improve the situation. We have the laws but we need to devise implementation mechanisms, especially in terms of benefiting patent holders their rights. It is not only about individual success but national progress,” said Fikre Tesfaye, Patent Protection and Technology Transfer Director at EIPO. IPO asset is usually represented by a pyramid. There are few inventors at the top but a bulk of users/consumers at the bottom. However, the financial return declines as one goes from the bottom to the top. To note, most of the patents are given to foreigners.

As of now, the patents issued to a new invention to the population ratio stood at two inventions per 10,000 people, which is not a good sign for a country that craves to industrialize itself and aspire to be a lower-middle-income country by 2025.

In Ethiopia, patents are defined as a category of intellectual properties, which includes copyrights and trademarks. It is further categorized as a new or breakthrough patent, utility model, patent of introduction, industrial designs, indigenous community knowledge, and geographical indications, among others. An invention idea must qualify three requirements to be patented. First, it should be original. Second, the idea behind the invention should be above the knowledge of the average person. Thirdly, it should have industrial applicability. A patent that fulfills these criteria is protected for 20 years, internationally. However, patent for utility models, which is a minor invention and protected for 10 years, needs to fulfill only the first and third requirements. Most patents held by Ethiopians are of the latter. EIPO has registered close to 3,500 utility model patents since it was established 15 years ago.

The other way a patent is attained in Ethiopia is when a foreign patent holder or agent registers it in Ethiopia. This applies when the patent is not over 20 years after it was registered abroad. On the other hand, a new patent can be attained for industrial designs by making minor changes such as altering its shape, without changing it fundamentally. This patent type is protected for 15 years. In the past financial year alone, the EIPO registered 91 patents, more than 90Pct of which are utility models, while the remaining are patent of introduction and industrial designs. It also registered 366 artistic and software works under the copyright category. The office also registered 3,245 trademarks during the past fiscal year, of which 1,980, or 61Pct, is registered by foreigners. Since its establishment, the office registered close to 100,000 trademarks of which 12,000 are certified and 4,500 are by locals.

Yet, foreign investors are not allowed to get patents, for instance, to multiply, pack and export agricultural seeds of Ethiopian varieties, mainly because Ethiopia is not a signatory to all international IP agreements. So far, Ethiopia’s seed policy restricts exporting seeds to protect domestic investors.

“On the contrary, it encourages more the importation of seeds,” says Fantahun Mengistu, former Director General of the Ethiopian Institute of Agriculture Research (EIAR) and Country Director for Sasakawa Africa Association. “The absence of a legal framework that enables foreigners to conduct research and develop their own varieties as well as indigenous varieties in Ethiopia is undermining the efforts of the country to introduce more agricultural inputs.”

Such complications, coupled with other disarrays on patent laws, also undermines the efforts of the country to join the World Trade Organization (WTO). As a country dealing with impending WTO accession procedures, Ethiopia is expected to introduce various legal reforms to have WTO-compliant domestic laws. Particularly, the country needs to amend its laws as a guarantee for the intellectual properties based on the rule of the WTO.

But it is unlikely that this will be a reality very soon as the country is lagging behind in ensuring patent rights are implemented properly. Although a patent is the pillar of new inventions, innovation, and entrepreneurship with an immense contribution for economic transformation, Ethiopia is a net importer and consumer due to insignificant inventions as well as lack of research and development both at individual and company levels. The share of Ethiopia’s copyright to GDP was estimated at 4.73% according to a research conducted by the EIPO in 2012. Ethiopia also imported IP assets worth ETB24.3 billion during that year, while export stood at ETB465 million. The office is currently conducting another similar research, according to Elias Mohamed, Communication Director of EIPO.

Globally, 3.1 million invention patents are given annually since 2016, half of which is issued in China, according to the World Intellectual Property Organization (WIPO) data. By the end of 2018, the total number of invention patents in mainland China stood at 1.6 million. In 2018 alone, the intellectual authorities in China received 55,000 applications, of which 52,000 were by domestic applicants.

But the United States is at the forefront in terms of patent rights. From 1836 until 2018, the United States issued 10 million patents. Surprisingly, it took 155 years to issue the first five million patents in the United States, while the next five million was patented over the last 27 years. This is mainly because patent friendly laws were placed since 1991.

India’s patent figure is also rushing up following the emergence of a competitive tech industry in the country. In 2017, India registered 27,985 patents, doubling from 14,869 in 2010. Developing but industrial countries like India and China excelled in this regard by building a Traditional Knowledge Digital Library (TKDL), which protected their indigenous and traditional knowledge.

China, Brazil, and South Africa have a ‘disclosure requirement’, as the fourth requirement to acquire a patent. This also helps the community if a new patent is made based on existing traditional knowledge. Especially India with rich traditional knowledge saved itself from huge knowledge theft particularly after building their TKDL.

However, many developing countries like Ethiopia are stuck with the old property concepts, failing to benefit from the global dynamism. Ethiopia is no different. According to the research dubbed ‘Property Rights Protection and Private Sector Development in Ethiopia’ by Ethiopian Chamber of Commerce and Sectoral Associations, Ethiopia’s intellectual property regime has put the country in a precarious position. The study concludes that the Ethiopian patent law generally offers strong protection to inventors. However, such strength is treated as a weakness in light of encouraging domestic invention including through technology adaptation and imitation. Evidenced by the total number of patents issued to foreign investors as opposed to that of domestic applicants since the issuance of the patent proclamation in 1995. For developing countries like Ethiopia, ‘it is damn if protecting it, damn if not’ if there is no flexible system in place.

“Ethiopia could benefit much from patent rights and invention. Currently, almost all products and services in the country came from abroad. Some foreign manufacturers, suppliers and their import agents register patents and trademarks in Ethiopia, for most they do it ahead of their product’s arrival in fear of copyright infringements,” says an official from Ministry of Trade and Industry (MoTI). “Court fights over the patent rights of Crown Hotel, Intercontinental Hotel Addis Ababa and Chicken hut, among others, happened because of the lack of protection to patent rights. In other countries, such soft property has huge monetary value. But in Ethiopia we are starting from scratch, in terms of encouraging local patent and invention ecosystem. Yet, the MoTI is reserved from this, since major disagreements recently happened between the Ministry and Office of Attorney General.”

Additionally, weak intellectual property system has been daunting FDI flow from real industrial patent owners to Ethiopia. “Only Chinese companies dare to enter countries that have no serious intellectual property laws. The government is currently paying close attention to the intellectual property issue and the preparation of various laws is progressing faster now. It took us long to persuade the government that signing international agreements has benefits for Ethiopia,” says Girma.

Yilma Kassahun, lecturer at Addis Ababa University School of Commerce, agrees. “Tailoring intellectual property to the financial system is critical for Ethiopia, in addition to creating a nurturing ecosystem for the intellectual property culture, in order to copy, as well as develop a homegrown industry.”

Another major problem in patent rights is the fact that Ethiopia is not a signatory of many conventions, protocols, and agreements on international intellectual property. Out of the 30 such conventions, agreements, and protocols, Ethiopia signed only the WIPO convention and the Nairobi Treaty. The Nairobi Treaty is signed just to protect Ethiopia’s Olympic logo, the five encirclements, not to be used by any other party, locally or abroad.

Internationally, the intellectual property application, registration and protection works under two mechanisms, based on whether a country is a signatory of a specific protocol, convention, agreement, or not. If someone in a signatory country gets a patent, the patent is automatically protected in all signatory countries through the WIPO. Keeping this in mind, the fact that Ethiopia did not sign all the agreements has both pros and cons for Ethiopia.

The bright side is it helps the country to copy any invention protected by a patent from developed countries and manufacture it locally without liabilities. And, its adverse impact is that it hinders Ethiopia’s innovators. For instance, if local inventors, like Yisak, want their patent to be protected all over the world, they need to personally go and register in 192 countries.

The other one is loss of knowledge, especially traditional ones, taken by other countries. This is also a practical lesson for Ethiopia, a country that is losing the patent of teff, to a Holland company. Although a high court in Holland recently revoked the patent, the company still holds the teff patent in other countries.

“Starbucks uses Ethiopian coffee without recognition, let alone pay royalty. Shema tilet, Ethiopia’s traditional knowledge on cotton weaving and clothing, is currently being pushed out by a printed nylon textile from China. Ethiopia is losing many similar assets because we are not a signatory to respective international agreements,” says Tadesse Worku, director of Intellectual Property Asset Development Directorate at EIPO.

Sintayehu Tadesse, Head of the Technology and Innovation Support Center, an institution established to disseminate information about intellectual property related information from WIPO, agrees. “Ethiopia is losing much of its indigenous traditional knowledge because they are not registered. Foreigners, for instance, took the knowledge of making local medicines for free, but we are buying the medicine that they produce, paying hard earned hard currency,” he says. “If all of Ethiopia’s traditional knowledge and geography-based outputs are registered in an open data center, patent examiners of any country over the world could see it before they approve a similar registration. For instance, Holland would not give the teff patent if there was such a resource online.”

To avert such problems, EIPO currently finalized a new proclamation that ensures the registration, patenting and protection of Ethiopian indigenous traditional knowledge and also under geographical indications, locally as well as internationally. It goes further as to be expected to return the royalties and benefits Ethiopia lost in teff, coffee and others. Once the proclamation is ratified, however, Ethiopia needs to sign respective international protocols; otherwise, the proclamation is implemented only in Ethiopia.

Additionally, Ethiopia is currently finalizing legal frameworks needed to sign six international intellectual property agreements, mainly as part of the African Continental Free Trade Agreement and WTO negotiations. Preparation is also finalized for Ethiopia to become a member of the African Regional Intellectual Property Organization, which bears the Pan-African vision, as opposed to such African offices established by French and English-speaking countries.

The country also finalized its preparations to sign the Paris agreement, which is basic to sign the Madrid protocol. This is a game-changer for Ethiopia, which is a member of WIPO since 2005 but did not sign critical agreements like the Paris protocol and Trade-Related Aspects of Intellectual Property Rights (TRIPS).

“Signing these agreements is critical for Ethiopia. The first thing big international manufacturers and patent holders ask to invest in our country is the level of legal protection for intellectual property. So far Ethiopia has lost much in terms of FDI, because we are late to sign such agreements. Currently, some of the legal frameworks are at the Ministry of Foreign Affairs, while others are at the Office of the Attorney General,” says Girma Bejiga, special advisor to the director-general of EIPO.

Few months after the AU ratified the ACFTA, Ethiopia also restarted their membership negotiation to join WTO, as part of the economic liberalization steps started by PM Abiy Ahmed (PhD) administration, since last year.

However, Girma argues if Ethiopia signs all the agreements and it becomes mandatory to implement them, the emerging patenting, innovation and industries in Ethiopia will disappear, dominated by foreign patent holders. “if we are not tied by those agreements, we could benefit most from what is already invented in other countries, but if only we could copy faster.”

8th Year • Oct.16 – Nov.15 2019 • No. 79

Ashenafi Endale

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