1. In the Law Student category, Leandra Keren of Queen's University won for her entry on "Children's Right to Parental Privacy".
2. In the Graduate Student category, Lindsay Paquette of Osgoode Professional Development won for her entry, “Bill C-15 and the United Nations Declaration on the Rights of Indigenous Peoples: A Proposal for Intellectual Property Law Reform in Canada for the Protection, Preservation and Prosperity of Indigenous Traditional Knowledge and Cultural Expression″. 
3. In the Professional category, the judges did not select a winner for this year’s Challenge.

The winner will be receiving a prize of $1,000 and, in addition to having their winning articles showcased here on the IPilogue, the articles will be considered for publication in the  or the .  We would like to thank our esteemed intellectual property experts who served as judges for the Challenge:

• The Honourable Roger T. Hughes QC

We look forward to next year’s IP Writing Challenge and continuing to help ignite a more vibrant public policy discussion on all facets of intellectual property law and technology.

The post Announcing the Winners of Canada’s IP Writing Challenge 2021 appeared first on IPOsgoode.

• Evaluate the merits of the claimed invention in terms of the well-established criteria for patentability, namely: novelty, ingenuity, industrial applicability and compatibility with accepted subject-matter classification (Mueller and Chisum, 2008).

• Collate patent applications and systematically organise the documents in such a manner that: they can be used as a reference body of knowledge both for the purposes of assessing whether subsequent patent applications have not been pre-empted by information in the public domain and to increase the general stock of knowledge in the public domain; and they can be made accessible to interested stakeholders for the purposes of spurring innovation.

The central question of the research study described in this chapter was whether patent systems in African states have the capacity to perform the two aforementioned functions. This question has its foundation in what is the raison ��'ê�ٰ��� of the patent system: the system’s need to facilitate the exchange of valuable information between inventors and society. The bargain or contract between a patentee and society operates on the theoretical premise that in exchange for a limited monopoly on use of an invention for 20 years, society has access to the ingenious information embodied in that invention. This research sought to find out whether this theory is supported by the reality of patent offices in Africa, i.e. do patent offices in the continent function as they should?

It seems clear from the research findings that the patent systems of many African states lack the safeguards and quality control mechanisms necessary to ensure that only inventions that meet the requisite threshold are conferred with patent protection. In addition, there is clearly a lack, in many African countries, of the infrastructure needed to ensure that the information contained in patent applications is collated and made electronically available to members of the public, researchers and technology-oriented industries. In general, the research findings suggest that a large number of African states are at present serving as dumping grounds for patents, with little examination of the merits of patent applications and little public access to the contents of the patent filings (contrary to the provisions and spirit of national patent laws).

Rigorous examination of patent applications requires governments to devote substantial resources to the objective. According to Lemley (2001), because the overwhelming majority of patents are never argued or licensed (i.e. asserted against a competitor), it is arguably financially efficient for a country to make detailed validity determinations in respect of only the few argued and licensed cases rather than in all patent examinations generally (many of which “will never be heard from again” (Lemley, 2001)). This raises the question: are African states perhaps being “rationally ignorant” of the objective validity of patents? That is, it may well be that it is too costly for African patent offices to discover all the necessary facts.

However, the phenomenon of poor record-keeping reveals that there is more than rational ignorance at play in African patent offices’ lack of delivery on their statutory obligations, because poor record-keeping goes entirely against the disclosure objectives of patent frameworks (Ghosh and Kesan, 2004). Further, the argument for rational ignorance is undermined by the reality that a rational national patent regime would be concerned with assessing both the costs and benefits of the patent system on all actors, as opposed to just (in the case of non-examination of applications) the apparent fiscal and operational efficiencies sought by a patent office.

Where patent offices do not provide substantive examination of applications, they encourage foreign patent applicants to seek to overwhelm weak patent offices with dubious applications, in the (entirely reasonable) hope that dubious applications will slip through and be granted juridical validity. Such occurrences would be a deep disservice to the nation concerned. Some scholars have suggested that the patent system could be improved by structuring an incentivised payment system for patent examiners (Burke and Reitzig, 2007; Geller, 2003). A simplified example would be to use court rulings as a measure of performance, i.e. a patent examiner could be sanctioned if a patent application which he/she approved via examination (had another role in the processing of) is later invalidated in court. However, certain practical issues reduce the usefulness of this kind of recommendation, e.g.:

• the rare occurrence of patent disputes and a strong tendency to settle out of court;

• long delays, in patent disputes, between patent issuance and final court judgements;

• other technical grounds for patent invalidations on technical grounds not connected to the performance of examiners; and

• complex sources of prior art in multicultural and multilingual African settings, making accurate examination or search extremely difficult.

A recommendation that cannot be argued against, however, is that there is a need for better training of legal counsel and judges in IP matters in Africa. A high quality patent system is impossible to achieve with poor quality lawyers and inexperienced judges; ineffective examination protocols assist to infiltrate the public domain with harmful and oppressive monopolies (Katznelson, 2010). Patent law requires a heterogeneous national administrative regime, with the patent office in the central but not solitary role (Farrell and Merges, 2004). However, there seems to be, in the countries surveyed, a palpable lack of appreciation for patent administration within a multi-institutional context. Multiple sectors of government need to take a deep and critical interest in the context and operations of a country’s patent office.

As stated at the beginning of this chapter, patent offices are meant to engage in two key activities:

• Consistently assessing initial applications and granting of patents only to those applications that meet the necessary criteria; and

• Ensuring that the database of patents is reliable and accessible to the public.

The evidence from this research suggests that quality of delivery on both of these services is at present deplorable in many African states. Of particular concern is the potential impact of these faulty African national patent regimes in relation to transfer of emerging technologies. (See Chapters 11 and 12 of this volume on patenting matters in relation to clean energy technology in Mozambique and Egypt respectively.) Economic arguments for patent protection are founded on the need to incentivise research and development (R&D), disclosure of technological knowledge and facilitation of technology transfer. Such arguments collapse in the context of societies lacking the capacities to capture and disseminate technological knowledge. Technology contributes to social welfare and if there is no effective transfer of technological knowledge via the patent system, the ���������Dz�����'ê�ٰ��� for the patent system evaporates.

At present, African patent offices seem to be operating on what Drahos calls a “trust me” mantra (Drahos, 2008). Such trust, to the extent that it exists, would clearly be misplaced in the case of many of the national contexts surveyed in this study. African national policy-makers need to pay much more attention to what is happening in their patent offices. Transnational companies, the biggest users of the patent system, are happy to have a world in which, at a moment of their choosing, they can obtain high-value patents at a low cost. To such firms, Africa is at present a highway, with no speed limits, on which applications are rushed to patent offices. Business actors encourage the speeding up of the work of patent offices, and reductions in the cost and quality of the application processes (Geller, 2003; Jensen et al., 2005).

There is therefore a clear need to, inter alia, utilise the teeming number of African science graduates to fill some of the gaps in the examination modalities. There is also an urgent need to improve the information technology facilities at African patent offices. Much of the scientific information contained in African patent applications is at present not electronically available to stakeholders. The result is that market monopolies are being granted to foreign and domestic patent-holders in exchange for nothing in terms of transfer or dissemination of crucial innovative knowledge. Patent offices are supposed to facilitate interactions between manufacturers, inventors and broader society. The offices are sustained not just by inventors but also by society, and therefore they owe a duty to society. When patent offices give short shrift to examination of applications, and fail to collate and publicly disseminate the patent application information they possess, they have clearly taken sides with the inventor.

Ikechi Mgbeoji is a Professor of Law at Osgoode Hall Law School and a member of IP Osgoode. You can click to read the full chapter from which this redacted article derives.

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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.

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An interesting phenomenon in civilised circles these days is the wonderful ability of both the popular and academic commentariat to reduce or at least purport to reduce complex issues to convenient and potable sound-bites. Perhaps, the benevolence of "experts" in sparing members of the public the excruciating details and nuances of difficult issues is a reflection of the "fast-food" age in which we live. In the age of super-sized McDonalds burgers and "take-away" nuggets of wisdom reduced to neatly packed shiny boxes of chloroform, there is little patience with nuance and complexity. The attitude seems to be that if you are not for us, you must be against us. Few issues better exemplify this scary phenomenon than the much repeated demise of what has been condescendingly described as the "old economy" and its replacement by a shiny, wondrous world of a "knowledge economy."

In theory, the knowledge economy refers to an economy focused on the production and management of knowledge within the confines of economic rationality. On a second level, the knowledge economy refers to the use of knowledge technologies such as information technology [IT] and information management [IM] to produce economic benefits. On the other side of the divide, the ancien regime, is the old economy: that clanging world of manufacturing, labour, and industry. Although the exuberance of the false obituary of the old economy has been tempered by the realization that there never was a "Berlin Wall" separating the old economy from the knowledge economy, the fervent voices of the ideological holdouts who wait on the advent of the knowledge economy compels a reappraisal of what really happened in the past two decades.

Regardless of where one stands in this unfolding debate, one fact is beyond debate: there has been a tremendous emphasis on intellectual property rights in the past two decades. Amidst this resurgence of interest in an otherwise arcane and ignored field of law are the unprecedented changes in the means of gathering, processing, delivering, and manipulating data and information across space and cultures. This violent upheaval has been dubbed the emergence of a knowledge economy. But the real question is this: is knowledge a free-standing phenomenon or does knowledge have relevance solely within the context of that which it seeks to illuminate? If we agree with the proposition that knowledge is about knowledge itself, then, it would be safe to yield to those who gleefully announce the obituary of the old economy. On the other hand, if we conceive of knowledge as contingent and premised on substantive and practical issues of the day, then the obituary of the old economy becomes a glorified flapdoodle. Something tells me that the latter scenario seems more sensible. If our great thinkers resolve the conundrum of how many angels can sit at the tip of a needle, does that not presuppose that there are in fact angels and pins? If there are no angels and needles, it stands to reason that a utopian resolution of how best to sit a hundred angels on the tip of a needle is simply what it is: an exercise in philosophical jujitsu.

The closer one looks at the giddy prophecies of a knowledge economy, the sillier the exaggeration of the demise of the old economy becomes. The notion that knowledge is distinct from labour, manufacturing, and industry is one of the most successful myths to pervade intellectual circles in the past two decades. What is indeed astonishing is the intellectual "respectability" accorded the concept of a "knowledge economy" by many academics and policy-makers. At the basic level of intellectual property rights, perhaps the sternest reproach against the fallacy of a "knowledge economy" is the fact that we must deal with varied manifestations of knowledge protected by intellectual property rights. Yes, patent lawyers must contend with infringement cases involving real inventions manufactured by the "defunct" worker, copyright and trademark lawyers must also grapple with issues that implicate diverse aspects of the so-called "old economy."  It is high time intellectual property lawyers and philosophical called a time out on the exaggerated bifurcation of labour and knowledge that passes for informed predictions of the demise of the super-structure of intellectual property rights. The information economies of tomorrow would arrive on the back of the old economies of today and of yesterday.

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