So many inventions, but so few patents

Ancient Egyptians are credited with pioneering technologies ranging from paper and the ox-drawn plow to door locks and eye makeup. Anyone walking through the streets of Cairo can see that this innovative spirit lives on: You might see a bread oven conveyor belt loading directly into a packed delivery car, a tractor-donkey cart hybrid hauling rebar, or an electrician or locksmith MacGyver-ing any number of solutions to household problems while listening to one of the many local varieties of pop music.

However, this inventiveness rarely seems to translate into the formal sector. The Egyptian Patent Office says it received 2,300 patent applications in 2015: 500 from Egyptians and 1,800 from foreigners seeking to protect an idea developed elsewhere. In the same year, just 480 patents were granted in Egypt: 90 to Egyptians and 390 to foreigners. By contrast, the US Patent Office received more than 615,000 patent applications in 2014 and granted about half as many. Comparing patent registration in the US and Egypt is clearly unfair, but it raises questions: Why are Egyptians only submitting 500 patent applications per year? And how much should we care?

Protections for intellectual property (IP) like patents, copyrights and trademarks are meant to ensure that if you have an idea — be it an invention, a brand, a process, an artistic work — you are the one entitled to reap the benefits of that idea. Affording legal monopolies to these ideas is meant to promote innovation, assuring inventors and entrepreneurs that they can commercially profit from their ideas, possibly striking it rich.

On the other hand, all knowledge is a “public good” to some degree. Especially in developing countries, a balance must be struck between allowing those with good ideas to profit, and promoting access to ideas and tools which advance society as a whole.

Egypt seems to be failing on both sides of this equation. The low rate of patent applications is paired with harsh laws meant to protect copyrights. Meanwhile, these laws are laxly enforced, as any perusal of the Nkie sneakers, Borio cookies or Black Table whisky on offer will show.

Domestic challenges

Article 69 of Egypt’s 2014 Constitution guarantees the protection of intellectual property. “For the first time, IP was protected in the Constitution,” says Hala Essalmawy, an intellectual property law scholar.  According to Essalmawy, the signs point to the eventual creation of one body to oversee IP in Egypt — a positive step toward streamlining an extremely complicated system.

This complexity has been a major hindrance to promoting IP registration. Under the standing IP law passed in 2002, a host of ministries, courts and offices overlap in responsibilities for evaluating, registering and enforcing IP claims. Essalmawy estimates that there are nine ministries involved in intellectual property rights in Egypt. “When it comes to who is doing what, it is very confusing,” she says.

One result of this confusion is lax enforcement of intellectual property rights, leading to complaints from abroad about piracy and IP theft. And while enforcement is lacking, the laws on the books are often overly stringent, which further confuses the matter. The laws are strict, but they are often difficult to comply with, especially given the technical precision required to complete a patent application.

To apply for a patent, one must search through existing issued patents (which are not yet fully digitized) and write a comprehensive application explaining the technical and intellectual novelty of the idea. While the process is “not very difficult for those who have practiced and trained, really it is more like a science,” says Ahmed Donia of the Abu Ghazala Law Firm, the region’s largest firm dedicated to IP law.

Without proper training and an understanding of the system, IP applications are difficult to write, which makes IP rights difficult to obtain. A key function of the Egyptian Patent Office is awareness and training, for which it holds eight training programs per year and employs two consultants, but all agree that much more needs to be done to build the skills needed to increase the number of patents filed. 

Finally, there is the interesting mix of culture and enforcement. “It’s part of the culture that copying is not a taboo,” asserts Dina Waked, a competition law scholar at the Paris Institute of Political Studies, adding that this trait is matched by insufficient enforcement: Why put money into research and development if the idea can be stolen?

The mix of Egypt’s informal economy, its culture and a complex, ill-functioning enforcement apparatus has created a sort of self-fulfilling prophecy: most Egyptians’ indifference to IP rights has been met with inaction and ineffective policies. “What is happening on the ground is that adherence to the law is not strict,” says Nagla Rizk of the American University in Cairo.

International challenges

But Egypt is not alone in these challenges. Like many developing countries, Egypt’s IP system is fairly boilerplate, a result of its membership in the World Trade Organization (WTO). Egypt’s laws are labeled “TRIPS-compliant,” meaning that they meet international standards set by the WTO in 1994. The goal of the agreement was to standardize intellectual property law around the world, meaning that all 162 WTO members, from the United States to the poorest developing countries, now share more or less the same IP laws or risk losing membership in the organization. 

For critics of TRIPS, Egypt epitomizes the flaws in the international IP system. Because most of the world’s patents are held in advanced countries, the vast majority of patents applied for and granted in Egypt come from the US and Europe, whose economies are very different. Critics fear TRIPS draws wealth from developing countries to richer ones, and sets unnecessarily rigid laws for states that would be better served by having flexible laws tailored to helping them grow economically and socially.

Furthermore, investment and technology do not necessarily flow into low-income countries as TRIPS advocates had hoped. Most developing countries haven’t seen large increases in formal innovation as a result of TRIPS compliance.

In short, the combination of Egyptian bureaucracy and international standards has created a complex system in need of rethinking. “The problem is that we copy the current state of the law in the West, and we lack the general policy to know what to do with it,” argues Waked.

Finding a better way

Intellectual property is an important part of any country’s economic structure, encouraging businesses and inventors to produce. But especially in a developing country, IP must not only be concerned with the rights of knowledge producers, but also take into account the needs of knowledge consumers.

“Intellectual property should not be an end in itself. It should be a means to promote knowledge creation and utilization, and ultimately to advance human development,” Rizk maintains. “If we deal with knowledge only as a market good, we are failing.” 

Finding the right balance between protecting knowledge producers and increasing access for knowledge consumers is difficult. A balanced IP regime which eases producer-consumer tension will be different for every country. In Egypt, not enough effort has been made to address that tension.

Egypt’s IP law “does not offer a coherent philosophy in increasing access to knowledge in Egypt, which should be our priority as a developing country,” says Rizk.

A major part of the producer-consumer dilemma is the nature of IP itself. Intellectual property is not like other property. Theft of an idea is unlike theft of a car. Knowledge is cumulative and intangible. Almost by definition, we all take the ideas of others, combine them and sometimes improve upon them.

As a result, IP doctrine rarely lends itself to black-and-white judgment: Where is the line between borrowing ideas and stealing them? What is the right amount of time someone deserves to hold onto an idea? The tension between protecting ideas and sharing them creates the need for restrictions on IP protections. Egypt’s balance between protections and limitations is crucially important, and many feel it should be reevaluated in favor of greater flexibility.

“Here in Egypt, there is no awareness about flexibilities in the IP regime,” claims Essalmawy. Rizk adds that many of Egypt’s copyright laws are even more stringent than necessary to be TRIPS compliant, taking a “maximalist” approach to IP which grants generous rights and restrictions for rights holders. But “there is a lot more to IP law in a developing country than being more royal than the royals,” she asserts.  

In Egypt and around the world, new models for IP — such as creative commons licensing, where some, but not necessarily all, rights are reserved — may be changing IP while policymaking lags behind. Rizk points to new models in music, literature and technology where open access and other shared creations have proven profitable.

“You can advocate to push for change in the law, but you can also push for alternatives, and bring new ideas and innovative business models that rely on new technologies but still find space for themselves under the law,” Rizk says. 

For Egypt, embracing a more open and flexible system of sharing ideas should fit nicely into the reality on the ground, where innovation happens before our eyes each day. 

Robert Barron 

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