Africa IP highlights 2020 #3: The patent and designs fields

This post is the third installment in the “Africa IP Highlights 2020 series” of posts highlighting some of the key developments in IP in Africa in 2020. The first 2 posts covered copyright and trademarks.

The series is the result of collaboration between myself and several IP practitioners and researchers across Africa (in alphabetical order): Caroline Wanjiru (Centre for IP and IT Law, Strathmore University, Kenya); Chinasa Uwanna and Ekene Chuks-Okeke (Banwo & Ighodalo, Nigeria); Marius Schneider and Nora Ho Tu Nam (IPvocate Africa, Mauritius); Vanessa Ferguson (Ferguson Attorneys, South Africa).

The focus today is on the field of patents and designs.

Between January and February, the ARIPO Administrative Council adopted the amendments to the Harare (Protocol on Parents and Industrial Designs) as well as the implementing Regulations, which came into force on 1 January 2020. The Office has also published its Administrative Instructions under the Harare Protocol. The ARIPO website has a summary of the highlighted changes.

In March, the Kenya-US FTA negotiations formally began. The US is Kenya’s 3rd largest export market hence the excitement on the prospects of having a bilateral agreement. Commencement of these negotiations has been linked to the expiry of the African Growth and Opportunity Act (AGOA) in 2025 after claims that it would not be renewed. These claims have been challenged casting doubt over what seemed to be a key reason for pursuing the FTA. The US released its focus areas for the negotiations and IP was unsurprisingly one of them. The US position is that it would seek to have its domestic standard of protection for IP mirrored in the agreement. This means that the final FTA document could include copyright and patent term extensions; and elimination of flexibilities contained in the TRIPS Agreement. The TRIPS flexibilities have enabled countries like Kenya to provide essential medicines to their populations. There was public outcry against the US position from human rights based civil society organizations within Kenya especially on matters of agriculture and access to medicine. The concern is that the FTA may affect access to medicine in the country via extensions of certain intellectual property rights. This culminated into filing a case at the East African Court of Justice on the subject which is still pending.

Also in March, the Federal High Court of Nigeria (Lagos) nullified two registered designs belonging to the respondent inWest African Cotton Company Limited (WACCL) v Hozelock Exel, on the grounds that they were not new. The court found that the products made from the designs were similar to the products described in various shipping documents tendered in evidence by the petitioner, West African Cotton Company Limited. [Katpost on the decision here.]

From a legislative perspective, the period April to May saw the call for public participation to the drafting of a new IP legislation in Kenya. The draft Bill is one of the outcomes of a Presidential taskforce with the responsibility of interrogating the policies on the management and governance of parastatals in Kenya. In their report, the taskforce recommended the merger of the Kenya Copyright Board (KECOBO), Kenya Industrial Property Institute (KIPI) and Anti-Counterfeit Agency (ACA) into a new State Agency to be known as the Kenya Intellectual Property Office (KIPO). Currently, these bodies have different constitutive laws and operate independently of each other. Prior to 2000, KIPI was known as Kenya Industrial Property Organisation (KIPO) under the Office of the Attorney General. One of the biggest wins in this bill is the proposal to have specific law regulating geographical indications in Kenya. Currently, the applicable framework is the Trade Marks Act. This bill is still at the drafting stage. Key challenge here is the lack of a national IP Policy which would otherwise guide the law making process. [And it is not just Kenya: since 2016, Nigeria has intensified its efforts to merge/coalesce IP institutions into a new state agency to be known as Industrial Property Commission. Through the Industrial Property Commission Bill (IPCOM), the aim is to update current IP laws, repealing the TradeMarks Act, the Patents and Designs Act and to make provisions for the regulation of plant varieties, animal breeders and farmers rights and for other related matters].

Source: Fix the patent laws

Still in May, more than 80 leading academics, researchers and teachers in South Africa sent a letter to the South African President urging him to urgently reform South Africa’s patent laws and take further steps to ensure access to COVID-19 related health products. More than at any other time, pandemics (and epidemics) bring to the fore the need for African countries to ensure that patent laws are suitable for the peculiar issues of Africa and Africans in accessing essential medicines and medical equipment. [And as this Kat commented in this Katpost in March, it is not just patents. Copyright laws need to be fit for purpose, too]. And where does the journey of retrofitting IP laws start? In reducing the scope of exclusive rights? In expanding the scope of limitations, exceptions and exemptions? African leaders and public figures have called for a “people’s vaccine” against Covid-19, urging that vaccines against Covid-19 be patent-free, produced at scale and made available free-of-charge to people everywhere.

In October, South Africa and India with many African countries, co-sponsored a call to WTO to allow countries to opt to neither grant nor enforce patents and other IP on Covid-19 drugs, vaccines and other technologies. This would be limited to the duration of the pandemic terminating when global herd immunity is achieved. However, several developed countries including the US have opposed the call. Spicy IP has a 2-part post, which assesses the key aspects of the proposal and discusses the challenges, which the proposal must overcome.

It hasn’t been all doom and gloom. Africans have never been challenged to innovate as they have been in 2020! For instance, in Kenya, what followed  after the country confirmed its first case of Covid-19 in March, was a raft of control measures including closure of institutions of learning, imposed travel restrictions etc. In an unfortunate turn, the country experienced. Some innovative responses from Kenyans in response to shortage of medical supplies including personal protective equipment (PPEs) and testing facilities for Covid-19 are by students from Kenyatta and Jomo Kenyatta Universities who separately invented ventilators; Kenya Medical Research Institute (KEMRI) converted a machine used for testing other viruses e.g. tuberculosis and HIV, to detect the coronavirus boosting the country’s testing capacity. Also, two young entrepreneurs fabricated hospital beds by welding. Notable about these innovations is that they are open and involve a collaborative effort between the parties.

GuestKat Léon Dijkman’s review of Amaka Vanni’s Patent Games in the Global South in November shows that the national histories of patent (and other IP) laws and their application (including agenda-setting for reforms) can tell us so much about what needs to change. As Léon points out: “far from being insulated from these perverse relations of power, intellectual property [IP] laws can be tools for perpetuating colonial dominance at the expense of local populations”. Patent Games in the Global South focuses on Brazil, India and Nigeria and examines how “each country managed to – or missed opportunities to – exploit flexibilities in the TRIPs agreement to safeguard its population's access to health rights”.

Now that Covid-19 vaccines have been launched in various countries, what would be the determinants of global, all-people access to vaccines? Given the manner in which health research governance has emerged/is emerging in Africa, would Africans take the vaccines?