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From utility modelling to inventive nation

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.

Zimbabwean scenario
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.

Definitional implications  
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: henripasi@gmail.com

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