by Perpetua Mwangi
In 2009, the President of the United States (POTUS) Barack Obama launched the first Global Entrepreneurship Summit (GES) aimed at bringing investors and entrepreneurs from all around the world to showcase innovative ventures, exchange new ideas with a bid to spur economic opportunities and in turn economic development. The GES 2015 will be the sixth annual gathering of entrepreneurs at all stages of business development, business leaders, investors, mentors, and high-level government officials.
From an intellectual property (IP) perspective, the GES takes us back in time to the Vienna exhibition of 1873 when the Government of Austria-Hungary invited other countries to take part in an international exhibition on inventions. Many foreign participants were not willing to attend and exhibit their inventions at the exhibition because of the inadequate legal protection offered at that time to the exhibited inventions. The reluctance by innovators made apparent the lack of adequate protection on foreign inventions.
Two developments took place at that Vienna exhibition:-
• A special Austrian law was passed to secure temporary protection to all foreigners that participated in the exhibition for their inventions, trademarks and industrial designs.
• The Congress of Vienna for Patent Reform was convened that same year which elaborated a number of principles that were to form the basis of an effective and useful patent system.
In 1883, A Diplomatic Conference was convened in Paris leading to the final approval of the Paris Convention for the Protection of Industrial Property. The Paris Convention the first international IP treaty is in force today and binds member states. The reluctance by innovators to participate in the 1873 Vienna exhibition was due to difficulties faced in obtaining protection of their industrial properties in multiple countries.
This situation was because Patent applications had to be made at exactly the same time in all the countries so as to avoid publication in one country hence destroying novelty in the other country. This situation was due to practical problems such as diversity of laws, distance, and communication challenges which all necessitated the strong desire to have an international convention. This premier international IP treaty (the Paris Convention) introduced key principles among them:
– National Treatment: Article 2 provides that the nationals of other signatory states are to be granted the same protection as that state signatory accords its own citizens.
– Right of Priority: Article 4 provides that if a regular first application is filed in one contracting state, the inventor may apply for protection in any other contracting country within a designated ‘grace period’. Twelve months for patents and utility models; six months for industrial designs and trademarks. Such applications will be regarded as if they have been filed on the same day as the first application. This is quite an important principle as such application will have a ‘right of priority’ over any other application for the same invention that may be filed by another during the grace period. This is a move from the past practice whereby an applicant wishing to have protection in a number of countries need not present applications in each country at exactly the same time. Such applicant has the benefit of the grace period to determine which countries they desire protection.
– Well Known trademarks: Article 6bis protects well known trademarks. Member countries are obliged to refuse or cancel registration and to prohibit the use of a trademark that may create confusion with another trademark that is already well known in that member country. Protection is extended to a trademark that is well known in a member country even though it is not registered or used in that country.
According to WIPO, the total number of contracting states to the Paris Convention is 176, Kenya and US among them.
The national and International IP regime today has expanded and developed so much such that the fears that surrounded the Vienna exhibition of 1873 cannot be expressed by innovators and creators today. The IP protection measures in place today ensure adequate protection for both national and international IP proprietors.
Kenya’s capital city Nairobi is all set to host the sixth Global Entrepreneurship Summit from the 24th to 26th July 2015. It is the first time the GES is coming to Sub-Saharan Africa and Kenya has been honoured as the host. The GES has been previously held in Washington, D.C; Istanbul, Turkey; Dubai, United Arab Emirates; Kuala Lumpur, Malaysia and Marrakesh, Morocco. Gauging from past summits, Kenya and Africa stands to benefit from new and expanded markets, reduction of business barriers, new partnerships, investor confidence and other economic opportunities.
Sources from the White House stated that:-
‘This year’s Summit in Kenya will have an overarching focus on generating new investments in entrepreneurs, particularly women and young entrepreneurs. Choosing Kenya as the destination for GES underscores the fact that Africa, and Kenya in particular, has become a center for innovation and entrepreneurship. Kenya is a world leader in mobile money systems like M-pesa and a driver of innovation, through creative spaces like “iHub.” These are just a few tangible demonstrations of the entrepreneurial spirit that is deeply rooted on the African continent.’
The statement from White House describes Kenya as a ‘driver of innovation’ which description was also echoed by the UN during the 3rd International Conference ‘Financing for Development’ that was held in Addis Ababa, Ethiopia from the 13th to the 15th of July 2015. During the conference, Kenya was ranked as the global leader in advancing bank-less financial services ahead of developed countries such as the US, China, UK among other countries.
The accolades stem from technological advancements that have facilitated innovations in various sectors in Kenya and across Africa. New and young Firms in Kenya and Africa are unleashing innovations, creating jobs and driving economic growth. The global south is rapidly developing and it is important that such development is sustainable. IP protection is indispensable in any knowledge economy. For such economy to be sustainable in a manner that fosters development of Kenya and Africa, IP is indeed an integral tool. The GES will entail a display of innovative ideas necessitating the need for IP to be among the key considerations.
As the GES fast approaches and beyond it, innovators and other creators are expected and advised to make use of the IP laws in the country which can guarantee them protection over their creative endevours. Incidentally, IP protection is guaranteed under Kenya’s Constitution and by other legal instruments (both national and international).
Before displaying innovations and other creative works, some of the protection measures that may be considered include:
• Filing patent and utility model applications- for ideas that satisfy the legal requirements for such protection;
• Seek trademark registration- to protect brands;
• Apply for industrial design protection- for unique designs;
• Copyright registration- though copyright protection arises automatically, registration is prima facie evidence of ownership;
• Consider negotiating licensing and technology transfer agreements with investors who are able and willing to commercialize ideas;
• Consider joint ventures/ collaboration agreements,
• Make use of Non-disclosure/confidential information/ trade-secrets and ‘know-how’ agreements; and
• Consider entering into so called ‘turn-key’ agreements with potential investors.
The GES is also an opportunity for policy makers to objectively look at Kenya’s current IP regime and seek to establish whether the protection therein is effective enough to both protect and incentivize innovation and creativity in Kenya, Africa and beyond.
IP protection is vital in any country that purports to value intellectual assets of its people. The responsibility to ensure IP is protected lies with innovators, policy makers as well as other ancillary persons in the IP sphere.