Innovation and Intellectual Property in Africa
Innovators and entrepreneurs from across the globe almost always know the importance of using intellectual property law to protect their inventions. The first question, then, is “which type of IP protection should I use?” The answer to this question usually depends on the type of invention being protected. However, a deeper investigation into the benefits the average African entrepreneur actually receives from these protections, and why the current regime of protections even exist in the first place, yields a far more complicated answer for these entrepreneurs.
“Which type of IP protection should I use?”
When I first began working with African innovators through Emory University’s Advancing Healthcare Initiatives in Africa (AHIA) program, I was immediately impressed by their fluency in both the business and legal fundamentals of entrepreneurship. Since we were working primarily in the healthcare space, all the innovators were keen to secure patents on their inventions.
As I dug into the patent landscape in the innovator’s home countries and across Africa, I learned that patents might not be the best option for them. For example, many of the smaller companies with limited resources might struggle with the costs of filing and maintaining a patent, not to mention the additional costs required to defend it in the event of infringement.
For these innovators, I learned that a “utility model” might be a more appropriate. Utility models are a form of IP protection that doesn’t exist in the United States but offer many of the same protections as a patent at a fraction of the cost. Even better, they can easily be converted into a patent at a later date. Uncovering this patent-alternative sparked my interest in learning about the history of patents in Africa with hopes of forming broader recommendations on systematic changes that could improve the African patent system.
“Utility models are a form of IP protection that offer many of the same protections as a patent at a fraction of the cost.”
IP laws are fundamental to innovation because they provide a structure through which innovators can place a value on the investment of resources required to solve a problem. IP laws are also territorial, meaning that the associated rights are specific and enforceable to the countries in which they are filed.
Innovation in Africa most often occurs in the “informal sector” where solutions to problems are uniquely suited to solve everyday local challenges. Despite this, IP laws across Africa mimic those of industrialized nations which are structured to protect the larger-scale innovation of multi-national corporations.
The underlying reasons for discrepancy between the reality of innovation in African and the scope of African IP laws has deep roots in colonialism and the attitude of industrialized nations towards Africa. To remedy this imbalance, I propose ways in which the member nations of the newly formed African Continental Free Trade Agreement (“AfCFTA”) can re-negotiate various trans-national IP treaties to implement laws that favor African innovators rather than foreign corporations.
“AfCFTA can re-negotiate various trans-national IP treaties to implement laws that favor African innovators rather than foreign corporations.”
To learn more, please consider reading my article recently published in the University of Iowa’s Journal of Transnational Law and Contemporary Problems, entitled “A Window of Flexibility: Why the Formation of AfCFTA Provides an Ideal Opportunity for African Nations to Employ TRIPS Flexibilities on a Continental Scale.”
Bennett Gillogly is a graduate student studying law and business by pursuing his JD/MBA at Emory University in Atlanta, GA, USA. Mr. Gillogly has advised African entrepreneurs through Emory’s AHIA program and the Guateng Accelerator Program Competition.
Mr. Gillogly has no financial involvement or interest in the Bio Africa Marketplace or products mentioned therein or elsewhere within the BioAfrica Innovation Hub websites. His role in the Scientific Resource Hub does not constitute endorsement or recommendation of specific products or suppliers mentioned within the Bio Africa Innovation Hub websites.
AHIA is a program of Emory University that aims to address unmet medical needs in Africa by supporting early-stage biomedical innovation in Africa. We do so by training and advising innovators and students on the business and legal aspects of entrepreneurship.