Please see my guest post — “The Smart Phone Patent Wars: What are FRANDs For?” – on IPWatchdog.com.
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The following is a guest post by Elaine de Beer a patent attorney at Edward Nathan Sonnenbergs (ENS) – Africa’s largest law firm. Enjoy!
The thought of Africa may conjure up images of disease, poverty, wars, famine and downwardly progressing economies. Indeed, Africa is sometimes regarded as a dark continent attracting only those in search of precious metals and hidden gems. It is, therefore, no wonder that outsiders at times find it difficult to make a positive association between this image of Africa and the progressive intellectual property rights system actually present on the continent. With the supposed lack of infrastructure and market-awareness in Africa, there is often a perception that Africa has no role to play in the global economy and there is, therefore, no incentive for companies and multi-national organisations to enter the African marketplace to begin with.
However, the true state of affairs on this continent could not be further from the truth.
What outsiders often miss is that sub-Saharan Africa is widely considered to be the world’s second fastest growing region, after Asia with a GDP forecast of 5.8 percent for 2012, and a foreign direct investment that has increased from $9 billion in 2000 to $88 billion in 2008. In fact, the economies of Africa enjoy a GDP which increases year-on-year and there is a burgeoning middle class together with a rapidly growing technology and telecommunications sector.
In the interest of full disclosure, it should be pointed out that most African countries have very small intellectual property professions, which means that there is little or no economic incentive for any publisher to assume the financial burden of launching and selling specialist law journals, law reports and practitioners’ reference works for most of these countries. For the outsider, this generally means that information relating to the filing of a patent, an opposition to a trade mark, or a defence to an action for copyright infringement is not easy to come by.
A second problem often faced by practitioners trying to navigate the world of intellectual property protection in Africa is that there is often great difficulty in communicating – both within Africa and between Africans and the outside world. Indeed, levels of telecommunication penetration and, particularly, the lack of broadband internet access have placed greater importance on slower and less reliable communications media such as the fax and regular postal service. This means that information which, in many developed countries one simply gathers from an official website, is far more difficult to access in Africa.
As such, the apprehension regarding obtaining IP protection in Africa may stem more from the IP practitioners tasked to handle matters in Africa than from the companies themselves. This lack of information often results in progressively difficult matters, where time-consuming effort needs to be put into the completion of the simplest of tasks, with frustrating and undue delays often being the end-result.
And so, South Africa is rising to face the African challenge. Many South African law firms are strategically positioning themselves as key-role players on the continent with an impressive and growing presence in Africa.
These law firms are providing an African solution to an African problem by fostering strong relationships with key personnel at each of the African intellectual property institutions as well as local law firms in each of the African countries. In addition, they have built up expert knowledge on the inner-workings of the local and regional intellectual property systems in Africa.
This enables them to obtain information on intellectual property matters with minimal effort and no undue delays.
From an intellectual property perspective, clients seeking to do business on the African continent can rely on their trusted advisor in the form of a leading South African legal firm that has an in-depth knowledge and understanding of the laws, practices, customs and procedures in each African region, as opposed to having to seek and develop a new advisory relationship in each territory.
In conclusion, it should be borne in mind that Africa is expected to continue enjoying substantial economic growth and increased economic activity, and as such, obtaining intellectual property protection and maintaining and enforcing these rights should be at the top of any checklist of a company seeking to obtain a dominant position in today’s global economy. This is where South African law firms have a key role to play and are coming into their own quite remarkably.
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