A Promise Betrayed? Rethinking the Clerical Natures of IPRs Practice in the Third World

Ikechi Mgbeoji is an Associate Professor of Law at Osgoode Hall Law School and a member of IP Osgoode.

For more than one hundred years, the branch of law known as intellectual property rights (IPRs) has been treated by universities and colleges in the Third World as an after-thought, an appendage to other disciplines of law. This note is not concerned with the different theories of varying degrees of coherence and persuasiveness adduced by scholars and jurists in justification for the existence of IPRs. Rather, I seek to draw attention to the clerical drudgery which largely passes for intellectual property rights legal practice in the Third World. By the Third World, I mean the post-colonial states of Africa with the exception of South Africa.

At a primary level, IPRs concern that branch of law dealing with the legal regulation of the creation, protection, transfer, use, and access to intangible creations of the human mind. From its modest origins in trademarks, in modern times, IPRs traverse the gamut of copyright, patents, industrial designs, trade secrets, integrated circuits and topography, plant breeders rights, and other emerging categories of IPRs.

Regardless of the school of thought which one may subscribe to, it is now beyond question that the vast majority of jurisdictions across the world have laws on IPRs in their statute books. Beyond statutory support, however, various jurisdictions have created administrative and institutions to deal with the manifold aspects of IPRs. In many African states, this holds true.

However, the mere presence of statutory provisions with skeletal administrative machinery does not necessarily settle the question of whether the practice of IPRs law in the Third World is qualitative and comparable to the best practices in the world. No honest observer will seriously argue or contend that lawyers involved in IPRs practice in the Third World can match the best IPRs lawyers in the world.

Indeed, my considered opinion stemming from visits to and lectures in several countries across the world is that the environment in which IPRs law practice is undertaken in many African states is largely devoid of serious intellectual exertions.

Consequently, save in rare exceptions, the vast majority of what passes for IPRs legal practice in the Third World is the running of errands for foreign and domestic clients. The vast majority of prestigious law firms with ostensible “reputation” in IPRs practice in African states are largely engaged in the submission of ready-made applications, especially on patents, on behalf of the major law firms of Europe and North America.

In plain language, not even the “acclaimed” IPRs lawyers and “IPRs Law Firms” in several African countries are geared to possess adequate cutting-edge knowledge of substantive issues of IPRs law in the various fields of biotechnology, patents, trademarks, copyrights, trade secrets, et cetera. IPRs law courts and judges are hardly any better.

Unlike in land law or administrative law, or even constitutional law, where some judges have distinguished themselves, no African case law on IPRs has been important or seminal enough to command the scholarly attention or judicial notice of foreign courts. The sub-optimal quality of IPRs legal practice and jurisprudence in several African states may not be the fault of individual lawyers or judicial officers but a function of the deficient system in which lawyers in African states operate.

The causes of this terrible state of affairs are not difficult to discern. First, the colonial IPRs regimes in Africa were designed to service the needs of the British Empire. Our trademarks and patents office was created to be a receptacle, a rubber-stamp of foreign applications with little or no local input. Our colonial lords designed our IPRs offices to merely receive their applications and stamp them with no questions asked. Since the colonial overlords left Africa in the 60s and 70s, the structures for IPRs law practice have barely improved on both substantive and procedural levels.

Second, while statutory provisions may contain few modern nuggets stemming from contemporary international treaty obligations, IPRs laws and institutions in African states are still rooted in the service of the European and American metropolis. Unlike Brazil, India, China, et cetera, domestic industrial needs and the imperatives of a developing economy are sacrificed on the altar of obedience to foreign diktat.

Third, the most disturbing lacuna on the legislative front is the absence of substantive examination in the processes leading to the grant of certain IPRs, especially, patents. If truth be told, in matters of patent protection for inventions, our law firms and lawyers are largely tasked with the burden of filing and registering foreign applications.

All PCT applications filed in the vast majority of African states are drafted by foreign patent lawyers, examined in foreign patent offices and mailed to lawyers in respective African countries for filing at either a regional patent office or at the domestic patent office. There is zero input from the local lawyer.

A brief survey of the number of patent applications filed in African states shows that local inventors hardly file for patent protection in African states. Even if they tried to, they would be hard put to find a local lawyer capable of drafting the requisite application. The reason why the vast majority in African states cannot draft patent claims is simply because the domestic Patent Laws do not provide for domestic examination of patents. With the clear exception of South Africa, there is no place or institution where patent agents can be trained in the techniques of claims drafting. The training programme often lasts 2-3 years.

In a continent teeming with thousands of unemployed science graduates, it is a disaster and a shame that the national IPRs laws and procedures do not require the examination of application for patentability.

If there has been some slight improvement on the legislative front, there has been next to none at the procedural level.

In countries with a functional and responsive IPRs regime, the vast majority of cases on IPRs disputes arise from contested decisions of administrative tribunals and/or industrial disputes between two or more users/creators of IPRs. Given that domestic African laws do not promote an intellectual intervention by lawyers in the practice of IPRs, it should surprise no one that IPRs practice in African countries is dominated by clerical assignments. Much time is wasted interfacing with ill-equipped and under-trained civil servants.

In sum, institutional and legislative shortcomings have conduced to African IPRs lawyers principally tasked with performing clerical assignments for foreign and domestic clients. Right now, there is more intellectual input in drawing up an agreement to sell a dog than in assigning a trademark or prosecuting patents applications. This situation needs urgent remedy. It is the smart thing to do. It is the right thing to do.