by Seno Namwandi
Intellectual Property (IP) is widely spoken of but not always well understood. The IP ecosystem is complex, broad and has to balance varying interests from creators to financiers to consumers. It is relevant to the songwriter, medical technician, architect, software coder, business owner etc. IP is loosely defined as a legal right granted to a property that arises as a result of intellectual activity or creative input. It is inherently a legal right granted by a government body to exclude unauthorized third party use. Enforcement varies from jurisdiction to jurisdiction which can be complicated. However, through the World Intellectual Property Organization (WIPO), there are a set of uniform legislations and regulations to govern IP.
As an entrepreneur, the complexity arises from understanding which type of IP is applicable to the business, how to register it and more importantly, how to finance it. Simply put, IP is an investment from a business because the registration and upkeep reflects as an expenditure on the balance sheet. Once acquired, IP can additionally act as a stream of revenue if the entrepreneur intends to license the invention or innovation to other businesses. If an entrepreneur decides to have a deliberate and intentional IP strategy, eventually, the IP portfolio can be used in offensive litigation. This means that a portfolio can be used to exclude other companies seeking to develop inventions or innovations in that area for the purpose of initiating license negotiations. In short, IP has many uses and unpacking the uses aids the understanding.
Firstly, it is important to identify which IP is relevant to the business. Most times, several IP forms are relevant but the decisions on which to register should be done in tandem with the cost benefit analysis of each invention and/or innovation. IP is divided into two sections; industrial property rights which incorporates patents, trademarks, industrial design, geographical indication and the new forms of IP- traditional knowledge and expressions of folklore. The second section is Copyright and its related rights pertaining to performers’ rights, broadcasting rights etc.
Broadly, patents are defined as a monopolistic right granted to an individual or body corporate to make, use, sell and import an invention or innovation. This right is granted for duration of 20 years provided that the invention or innovation satisfies the criteria of novelty, industrial applicability and inventive step. Trademarks protect the name, logo, slogan or any identifying mark to a business, product or service. This name is protected for a duration of 7 (10) years depending on the jurisdiction provided it satisfies the conditions of originality, distinctiveness and appropriateness (it may not be obscene). Trademarks can be renewed perpetually. Industrial design is used to protect the aesthetic appeal of a product; one can protect the appearance and look of a product for duration of 10 years with the option of renewal if it satisfies the condition of originality. Geographical indication protects the produce that is grown or produced in a certain location. The produce is said to be unique due to the qualities natural to the particular location. Duration is perpetually renewable.
Copyright is more involving as it involves the rights for writers, musicians, painters, photographers, performers and the general artist community over their creations which are called works. Copyright and related rights govern the rights of creators, performers and broadcasters. The works that are eligible for copyright protection are but not limited to novels, songs, compositions, films, plays etc. Copyright is the longest lasting type of IP; it lasts for the lifetime of the author plus minimum of 50 years after death and is granted on the basis of originality.
Once the most suitable IP is identified, the next step is to register it with the local IP office. Most countries have their IP offices as a stand-alone government entity or attached to the Trade Ministry. IP registration varies depending on which IP is required-some are simple enough for the entrepreneur to apply on their own, others such as patents are complex and require a patent attorney to draft the application. The application process can be additional cost if IP practitioners are involved and therefore the cost benefit analysis for a small, medium business is critical.
The nature of IP is multidisciplinary in that it requires technical, legal and importantly business acumen. The IP acquired will then not only act as a right to exclude unauthorized third party use but it can also act as a revenue stream. Depending on the IP of choice, the business can then leverage the right in license fees from other businesses. Before investing in IP, if this is an intention, it is imperative to build a business case.
Simply put, these are the considerations that need due diligence as an entrepreneur. Ultimately IP is critical as an incentivizing tool for the continuous development of innovation. The IP system works on the basis of reward- an innovator is rewarded with the monopoly and benefit over her innovation. The type of ingenuity and creativity that fuels innovation that result in the upliftment of society and economy should be rightfully rewarded to the generators of that upliftment.
Seno Namwandi is one of the pioneers of Intellectual Property (IP) in Namibia. Her recent achievement was being selected as 1 of 16 Mandela Washington Fellows from Namibia for 2018. She currently serves as the youngest director on the board of the Business Intellectual Property Authority (BIPA) in Namibia. Seno is also employed full time at the International University of Management (IUM) where she serves as the Director of Innovation and IP. Seno has a Masters degree in IP from Africa University, Zimbabwe and other postgraduate certifications in IP. She obtained her Bachelor’s degree in Molecular Biology and Biotechnology from Stellenbosch University, South Africa. LINKEDIN | EMAIL
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