Our experts across the region explore a number of pertinent themes that impact doing business in Africa.
Umme Salamah Tyebjee Associate, Innovation & Patents
Hussain Osman Associate, Innovation & Patents
Shouq Al Majali Trainee Solicitor, Corporate Commercial
In present times, Intellectual Property Rights (IPRs) have become the crux of all industries be it, science and technology, medicine and pharmaceuticals and very recently the agriculture and farmer industry. Plant breeding is the latest innovation in this field. Registering industrial property rights in Africa can be a lengthy process and at times complicated so it is important for companies to seek practical advice in this area.
Developing new favourable plant traits is a very creative process mainly driven by biological assessment, intense research and development, use of sophisticated science and technology, and knowledge of plant genes and genomes. Hence, this whole process is very time consuming involving allocation high capital. Therefore, each experiment and conducted and product created involves lot of precision and hard work. However, the main fear of innovators in this field is that the resulting products can be easily reproduced, reverse engineered, copied by competitors, and sold in the market for a lesser price.
Considering the recent development in the field of agricultural innovation and the changing trends, Intellectual Property protection for plant varieties, seeds as well as for plant-related inventions is indispensable in order to reward plant breeders/ innovators for their work and to foster agricultural innovation.
This article discusses in general the IP rights available for plant – related innovations, and an overview of the laws and regulations protecting agricultural innovations in Africa.
In recent years, African countries have been compelled down the path towards IPRs. IPRs would arguably promote African countries by encouraging agricultural development and technological investment in research. Difficulty arises when looking at the intricacies of the agricultural industry within the continent. The most valuable and capable innovators in Africa are comprised of small farmers. Innovation is integral to the advancement of the agriculture sector when it comes to plant breeding. It is estimated that African farmers utilize seeds cultivated within their communities for as much as 90% of their farming needs. Policy-makers are faced with a challenge when reviewing the research and development (“R&D”) route best suited to cater to African innovators. One of which depends on private monopolies and genetically modified crops which would not arguably be in the farmers’ best interest. Being that the entire purpose of IPRs is to protect the innovators, the most suitable approach should be based on communal use of knowledge and led by farmers.
For Africa, patents or other forms of intellectual property rights on living organisms have profound implications for collective livelihoods that have sustained the continent for decades. There is growing consensus the IPRs in their current form, cannot protect indigenous technologies, innovations, practices and biodiversity passed down through generations. The suggested privatised R&D methods arguably steal innovation and practices of local communities by claiming them to be their own thereby robbing the community of the economic benefits associated with such innovation. As such, IPRs for agricultural innovation in Africa should not be based on the classic models monopolising for commercial purposes through privatization. Instead, focus should be placed on recognising and protecting the livelihoods of farming communities.
Over the last two decades the international community made significant strides in working towards global sustainable development and the management of the planet’s resources. The issue of the use of biodiversity has been at the heart of these reflections, in addition to upholding the principle that plant genetic resources belong to humankind’s common heritage and should stay within the public domain. The World Trade Organisation (“WTO”) enacted the Agreement on Trade Related Intellectual Property Rights in 1995 includes provisions relevant protections to the agricultural sector against the exploitation of farmers under Article 27 which specifies that IPRs do not have to be granted when the commercial exploitation of an invention endangers human, animal or plant life or health, or pose a danger to the environment.
In 2020, the WTO created the African Intellectual Property Rights and Innovation (“afrIPI”) Project. The project has been commissioned to operate for a total of 4 years with the following objectives:
Promotion of IP international agreement for reinforced cooperation between EU and Africa
Strengthening of national and regional IP institutions to increase efficiency of IP systems in Africa
Raising awareness of IPR in the African society
Plant variety protection (PVP) is an IPR designed specifically to protect new varieties of plants offering protection for the investment plant breeders make in developing new varieties. Such rights were established under the International Union for the Protection of New Varieties of Plants (UPOV). Being that plant varieties are specifically excluded from patent protection, this right is specifically important for agricultural purposes in Africa to protect farmers and plant breeders from the exploitation of their innovation. In Kenya for instance, prior to acceding to UPOV, breeding was restricted to public breeders from public institutions. With the implementation of a PVP system and membership to UPOV, there have been significant breeding activities among breeders from the private sector. Private breeding has resulted in remarkable growth in the agriculture sector thereby leading to a growth in the economy. In Egypt, Presidential Decree No. 82 of 2002 governs plant variety protection including requirements such as the need to obtain the breeder’s consent prior to production, sale, export or import of their protected varieties. The introduction of an effective system protecting plant variety results in the development of quality seeds, a prerequisite to successful agricultural industry.
Agriculture is one of the most significant sources of livelihood in the African continent. Legislation for the protection of plant varieties and agricultural IPRs are integral to ensure that farmers and breeders remain shielded from the urbanisation and commercialisation of the process. With agriculture being the backbone of Africa’s economy it is necessary to ensure that individuals remain protected in order to safeguard the continent’s income.
For further information, please contact Umme Salamah Tyebjee or Hussain Osman.
Published in September 2022
