APRIL 26^th  is World IP Day. But what does it mean for South Africa? And where are we in the global rankings when it comes to innovation and intellectual property?

The Bloomberg 2017 Innovation list has recently been released which ranks the world’s top fifty economies. There were seven factors in total that determined these rankings, they were: the intensity of research and development in a country, the manufacturing value-add which was provided, the level of productivity in a country, the density of high tech developments, the efficiency of tertiary institutions, the researcher concentration and the amount and level of patent activity in a country.

When one looks at the ordinary definition of the word innovative, it is defined in simple terms by the Oxford dictionary as “featuring new methods, advanced and original”. One is left with quite a bitter taste to see that South Africa filled with all its talent, skills and knowledge has not managed to make the cut.

What is more alarming is the fact that the ranking started with over 200 economies, and only those countries which were unable to provide data for six out of the seven categories were immediately eliminated. Does this mean that South Africa was unable to make the cut because we lack information regarding the above factors or that South Africa lacks the required features of an innovative economy?

South Korea topped the rankings with a score of 89. The last entry to make the cut at number fifty was Morocco with a score of 43.99. If this release by Bloomberg is an accurate reflection of how innovative an economy is, it means that South Korea is twice as innovative as Morocco. One can only then imagine where this leaves South Africa.

Let us consider a few of the factors above within the South African context.

When one looks back at what happened in our tertiary education sector last year and for the two years prior to that, many Universities lost more than a quarter of their academic year due to continuous protest action by students in the so-called “fees must fall” campaign.  Instead of learning, teaching and exams being conducted, South Africa’s universities had become a hotbed for riots, violence, civil unrest and vandalism. This left Universities with millions of Rands worth of their precious resources destroyed.

When one furthermore considers patents within the South African context there is no doubt that there are several brilliant new ideas, concepts and methods that are continually being developed within our borders. Such as the “Kreepy Krauly” pool cleaner and the large boulders known as “dolosse” which you see in some harbours, protecting the harbour walls from the erosive force of ocean waves. These inventions have gone to be adopted and implemented across the globe and have gone on to earn their inventors international acclaim and a wealth of money.

However, such sparks of genius often fail to meet their full potential within the South African economy and that of the world at large. There are various reasons for this. Some reasons may include a lack of finance or funding on the part of the developer, a lack of knowledge regarding how to market and distribute a product successfully and other failures within our system. The validity of even the patents that are eventually registered are questionable as they do not undergo a substantive search and examination process in South Africa, before being granted with many granted patents being completely invalid.

If you look at some of the other factors, although South Africa has shown a slight increase in its productivity in recent years and was ranked 52^nd out of 63 countries by the Institute for Management Development World Competitiveness Yearbook, we continue to battle due to our high unemployment rates, low business confidence, poor public sector services and lack of education. These factors continue to affect the growth of our economy.

South Africa’s most urgent sustainability challenge can be described in a report drafted by the World Wide Fund for Nature. The report describes food, energy, and water (the “FEW Nexus”) as the basis for a resilient economy. In order to secure a sustainable future for South Africa, there has to exist a complex relationship between these three forces. For example, water is a prerequisite for food production, water is a prerequisite for energy production, energy is required throughout the food value chain.

On a more global level, the following was identified as leading to greater social, economic and environmental volatility:

• competition for the country’s water resources (over extracted and heavily polluted);
• Agricultural land becoming scarcer;
• Global factors pushing up the price of inputs (fuel, fertilisers);
• The depreciating Rand and increasing imports of foods are making the country vulnerable to international food -price inflation, high fuel and commodity prices;
• The income distribution structure and disparity in food access between communities and households;
• South Africa is a net importer of wheat and meat (worsening food security for the poor);
• Climate change threatening to undermine agricultural production, human health, and human settlement and migration trends;
• Smallholder farmers and fishers are struggling and are under-capacitated;
• Food is wasted and lost through the supply chain.

When looking at the above, it does not take a rocket scientist to see why South Africa has failed to make the cut. However, the question that remains is how do we change the fate of this country, so that future generations are not faced with the difficulties that we are.

The answer is simple, in order to overcome the hurdles mentioned and for South Africa to compete on a global scale we have to start off with creating a sustainable economy. Where unemployment in the public and private sector is so rife, entrepreneurship and innovation plays an important role. In addition, South Africa is part of a global, knowledge-based economy. As such, we need to focus on the development of local, knowledge based capital in the form of new ideas and new intellectual property being developed.

Only when an entrepreneur is able to fully exploit his new innovative ideas and product developments, by way of securing exclusive rights to the intellectual property in those ideas and developments can he derive maximum benefit from those ideas – for the betterment of his own circumstances and those of the country as a whole.

South Africa has everything needed to be a global player in today’s knowledge economy – passionate people, some truly creative ideas and the willpower needed to make it happen. But we need the talented, forward-thinking citizens of this country to step forward and claim what is rightfully theirs. Step up, protect your IP, the future is yours for the taking!

It’s all in a name

Protecting more than just assets: The art of patents, trademarks and copyright law

Patented inventions have infiltrated every aspect of human life since the dawn of the industrial age; from electric lighting and plastic, to ballpoint pens and microprocessors. Today, the need to trademark individuals’ names is commonplace as socialites, pop stars and convicted murderers are used to promote and sell products and services, and lining the pockets of those looking to benefit from popular culture. Even deadly viruses such as Zika and Ebola have been patented in order to streamline research surrounding the development of effective vaccines to eradicate them. Elaine Bergenthuin, Patent Attorney and Partner at De Beer Attorneys, has over the past 10 years of her legal profession accumulated a wealth of experience litigating and prosecuting all forms of intellectual property law from software programmes and technology to biochemistry, and she strongly recommends that all work – even names – be protected by the law.

Not expensive to obtain, patents are territorial rights, and in general the exclusive rights attached to that particular patent are only applicable in the country or region in which it was filed and granted, and will be in accordance with the law of that country or region. Protection is granted for a limited period, generally 20 years from the filing date of the application. “Ideas can also be patented,” explains Bergenthuin. “This stops other entities from copying or using ideas without the creator’s permission.” Patents provide incentives to and protection for individuals by offering them recognition for their creativity and the possibility of material reward for their inventions. At the same time, the obligatory publication of patents and patent applications facilitates the mutually-beneficial spread of new knowledge and accelerates innovation by avoiding the necessity to re-invent the proverbial wheel.

A qualified electronic engineer, Bergenthuin has built her litigation career specialising in securing patents for software programmes and technology. “Very few developers realise that software programmes can and should be patented,” explains Bergenthuin. “Registering a patent for a software programme safeguards the actual processes or methods embodied within it, rather than merely the writing of the code itself, which copyright would protect.

Copyright is a form of protection given to the authors or creators of original works including literary, dramatic, musical, artistic and other intellectual works. The author of the work has the right to copy, distribute, perform, display or make derivative works of the original. “In general is it illegal for anyone to do anything with an original creation without the author’s permission,” adds Bergenthuin.

Forming part of the prerequisites for protecting the corporate identity of a brand, service or product, a trademark is an identifiable sign, design or logo that distinguishes a brand from others in the same industry. In time, a trademark becomes a beacon that the public use to clearly distinguish a business from its competitors.

Bergenthuin also points out that investors tend to favour companies that register their intellectual property as it increases its overall value: “…this is especially relevant for start-ups that are looking to attract investment and want to obtain a foothold in an industry as intellectual property is a tangible asset that investors can identify with, and the name, product or concept that is protected cannot be subsequently duplicated or copied by others,” elaborates Bergenthuin.

Examples of current intellectual property:

• Sony recently filed a patent or a contact lens that takes a photo when you blink. Is this where technology is headed? How soon will this be in everyday use?
• Apple to pay US$24.9 million in patent law suit to small company – over Siri – voice assistant technology used in iPhone. What does this mean? Will the technology still be used in future iPhone editions?
• Ivanka Trump is being sued for Trademark Infringement by luxury shoe brand. If she loses, how will this impact Donald’s reputation? And what about his political campaign?
• First discovered in 1947 and named after the Zika Forest in Uganda, the Zika virus was patented in February 2016 by two companies – namely LGC Standards and ATCC – wanting to minimise its availability in order to encourage the research and development of a vaccine to counter the deadly virus.
• Once revered by his fans and global brands alike for his athleticism, Oscar Pistorius registered his name as a trademark in respect to prosthetics, medical devices, teaching materials, psychological counselling and assessments, clothing and footwear, motivational speaking, physical rehabilitation services and the like.
• Hashtags are not only ways of categorising and promoting brands on social media; the need to trademark them has become ever more prevalent too. “Hashtags are effective marketing tools and they serve a functional purpose: to promote distinctiveness, and to prevent others from taking advantage of this distinction, hashtags should be registered as trademarks,” says Bergenthuin. “Examples include Coca Cola’s registration of #cokecanpics and #smilewithacoke.”
• Facebook is currently working on patenting emoji’s that resemble the account holder’s face and facial expressions.
• IBM files thousands of patents every year to keep others from developing technology which the company itself never intends developing. “This practice is also known as trolling,” adds Bergenthuin.
• Currently Kylie Minogue and Kylie Jenner’s legal teams are at loggerheads attempting to trademark the name Kylie in association with various fashion, entertainment and lifestyle applications.

“Whether it’s an idea on paper, a working concept, a name, a product or a service, intellectual property is still property at the end of the day,” stresses Bergenthuin. “It can be bought, sold and licensed in the same way as normal property…and it can just as easily be misrepresented, stolen or misused unless protected by law.”