In this 58th instalment, we postulate that with proper vision and strategy, our nation has vast potential to transform from utility modelling to innovativeness.
Report by Richard Pasipanodya
Contextualising the current scenario
In our previous week’s instalment, we advocated for the urgent update of our patent law to appropriately capture our national aspirations and market-place realities.
Among other arguments, we observed that our laws in their current state remain protective of foreign intellectual property (IP) creative interests at the expense of local innovativeness and creativity.
In particular, the requirements of patentability are far above minimal by our national or African standard practices.
Compounding this scenario is the universally acknowledged reality that we are more utility model creators than inventors in the technologically-developed countries such as the US, UK, European Union (EU) countries, Japan, Australia, etc. Yet, for whatever reason, we fail to recognise the importance of protecting our utility model creative acumen.
Creativity socio–economically linked
Most, if not all, forms of innovativeness and creativity are inextricably steeped in public spirit and expectations of any given nation, be it patents for inventions, utility models, industrial designs, trademarks, copyright, plant breeding or the interface of these.
It follows then that the ultimate products and processes are a reflection of that nation’s restless spirit as governed thereby by the knowledge repositories at hand at any given developmental epoch.
In this context, the innovativeness and creativity of a nation is influenced by social, cultural, environmental, and economic factors, with politics and the law shaping the models operandi.
Moreover, all these factors seek to address existing problems by providing solutions which meet the nation’s needs and expectations. Wherefore it would be naïve to ignore these factors, which in essence reflect a people’s generational or traditional knowledge as inherited from previous generations.
We have stated before that though Zimbabwe has had an IP protection system, it fell short in addressing domestic creative cultures. Further, despite subsequent regional and international compliance and approximation this desidarata was not addressed at all. Meanwhile, the reality on the ground is that there is vast creative potential in all fields of endeavour in Zimbabwe, albeit at the pace of our developmental level.
In this regard, our hub of creativity are designs and utility models.
Essentials of utility models
The Agreement on Trade Related Aspects of Intellectual Property Rights (Trips Agreement) is devoid of specific provisions for the protection of utility models. The plausible reason for this omission (or is it exclusion?) is that the sponsors that crafted this international IP instrument were way past our level of creativity. The Zimbabwe patent law also myopically ignores this practical reality of our developmental stage.
The Aripo Harare Protocol on Patents and Industrial Designs (Harare Protocol of 1982),however, provides some relief to Zimbabwe’s legal lacuna on utility models.
Section 3 defines utility models as meaning “any form, configuration or disposition of elements of some appliance , working tools and implements, as articles of everyday use, electrical and electronic circuitry, instrument, handicraft, mechanism or other object or any part thereof in so far as they are capable of contributing some benefit or new effect, or saving time, energy and labour or allowing a better or different benefit use towards the processing or manufacture of the subject matter or that gives utility advantages, environmental benefit, and includes micro-organisms, other self–replicable material, products of genetic resources, herbal as well as nutritional formulations which give new effects.”
Never mind the clumsiness with which this definition was amateurishly crafted, of importance is that at least Zimbabwe’s failure to provide for utility models’ protection, whether under patent law or independently of itself, is at least provided for under this regional protocol.
Concepts to be drawn from this definition are that to be protected under the Harare Protocol, a utility model must be new and industrially applicable, regardless of the field of human endeavour. In this context, utility models are viewed as of lesser innovativeness or none at all as compared to patents, hence the seemingly obnoxious variant term “petty patents”.
Is it really conceptually correct that a new creative article lacks the invention element at all? Even if this element of invention is so minimal as to constitute magnificence, where in patent law is the threshold of innovation set? Do different fields and spheres of human endeavour not require varying degrees of invention acumen, which naturally would be inexorably associated therewith? Obviously, where something new is created, some element of creativity associated with inventing would be present regardless of de minimis of the merit in sophistication.
This is the position with utility models; at least in the African developmental context. We should not demean or denigrate our creative capacity by myopically or blindfoldedly imitating the sophistication of technologically-developed nations. They have been in the technology cultures for long and their levels of sophistication is thus much higher than our own. Hence their clamour for higher levels of creativity.
Noting that our creative endeavours are of a lower sophistication by global standards, the criteria for the granting of local inventions should have been lowered or qualified to cover disclosures of the state of the art to local levels such as the scope of Aripo member States’ experiences. We say so because Article 27 of the Trips Agreement on protectable subject mater does not stipulate that patents shall be availed to new technologies in comparison to what is known the world over.
By that silence, the Trips Agreement thus impliedly permits the novelty, inventive step and industrial applicability requirements of inventions to be adjudged in accordance with what is the body of previously- known knowledge.
They are also judged according to technological improvements to existing matter which are non-obvious and according to what is industrially applicable in the context of the applicable environment; in our case, African context, and not globally. It is thus a permissive provision which accommodates localised as well as globalised standards of innovation.
Such an approach would not at all hurt foreign patented inventions as they would always be a phase ahead in accord with their developmental levels, aspirations and pursuits. At the same time, our so-called utility models would qualify for patenting as adjudged in our local environmental context and as dictated by our socio-economic development levels and aspirations.
By so doing, we will surely have a sufficiently incentivised local creative talent to engage in increased innovation, hence the acquisition, accumulation and dissemination of knowledge towards wealth creation.
The current higher levels would take us to viciously competitive standards to which we are minnows; something akin to Barcelona FC playing Zimbabwe’s Chibuku Rovers. These are unreachable levels at the moment which not only serve to perplex, but demotivate and frustrate creative endeavours and efforts.
Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775 053 007 or e-mail: email@example.com