Botswana needs a national intellectual property management law
The importance of Intellectual Property ( IP) and Intellectual Property Rights ( IPRS) cannot be over emphasized. Several Heads of States and authorities in the field of IP have emphasised the significant role IP and IPRs play in promoting economic development and growth. The President of the Republic of Botswana, Dr. Mokgweetsi Eric Keabetswe Masisi, during a meeting with the World Intellectual Property Organization ( WIPO) in 2018, said: “Intellectual property is like opening a new diamond mine.”
The 16th President of the United States of America, Abraham Lincoln once said, “The introduction of patent laws is one of the three most important developments in the world history.” Mark Twain shared the same sentiments and said: “A country without a patent office and good patent laws is just like a crab that can’t travel anywhere but sideways or backways.”
Despite having a patent office ( CIPA) and good patent laws ( the Industrial Property Act), Botswana seems to be a crab that is only capable of travelling sideways or backways. In the context of creation of new and useful technologies or technological innovations, there seems to be very little innovation taking place in Botswana. Only two patents were granted by the national patent office for two technologies created by Batswana or persons residing in Botswana, between 2010 and 2019 ( WIPO Statistics, 2021). An evaluation of Vision 2016 indicates that Botswana’s performance on the pillar of a “prosperous, productive and innovative nation” was weak ( Afrobaromerter, 2016). The truth is, Botswana has IP or patent laws but not all of them. The Copyright and Neigbouring Rights Act and the Industrial Property Act, Chapters 68: 02 and 68: 03 of the laws of Botswana respectively, are the national intellectual property laws of Botswana. They were enacted in 2006 and 1996 respectively and they provide mainly for acquisition and not for management of IPRs at national level. In view of the foregoing, one can say these IP laws achieved very little in promoting local creation, protection, and commercialisation of new and useful technology products.
It is worth noting that Botswana has had and still has several universities and Research and Development institutions such as University of Botswana, BIUST, NAFTEC and Department of Agricultural Research ( now NARDI), Botswana Vaccine Institute etc. The institutions are funded by the Government of Botswana to conduct Research and Development ( R& D). None of them have more than two technology products patented with the national IP office.
Something is missing, and it is not funding because public universities and R& D institutions receive subventions from the Government of Botswana to do R& D. As of June 2022, the World Bank indicates Botswana’s expenditure on R& D as standing at 0.54percent of the Gross Domestic Product ( GDP). According to the National Research, Science, Technology and Innovation Policy of 2011, the Government intended to set up a National Research Fund and increase expenditure on R& D to 2percent by 2016 in accordance with the Southern African Development Community ( SADC) commitment.
Several countries found themselves with very few or no technological innovations despite funding provided by their respective governments. They corrected this by enacting and implementing National Intellectual Property Management Laws for Publicly Financed Research and Development.
The United States of America enacted the Bayh- Dole Act in 1980 to provide a comprehensive framework for the development of new and useful technology products and promotion of technology transfer from government- funded research at universities and R& D institutions to the private sector. Other countries such as Brazil, Japan, Russia, China, Malaysia, Singapore, Denmark, Mexico, Finland, Norway, South Korea, Germany, Philippines, United Kingdom and Italy later enacted similar laws. South Africa too joined the bandwagon and enacted the Intellectual Property Rights from Publicly Financed Research and Development Act of 2008.
The Act promotes effective utilization of all intellectual property generated from R& D funded by tax payers. It also provides for the establishment of the National Intellectual Property Management Office, an Intellectual Property Fund and establishment of Technology Transfer Offices in R& D institutions and universities. Botswana does not have a similar law and consequently does not have structures for proper and effective management of all intellectual property emanating from government funded research and development.
Since independence the Government of Botswana established, funded and rationalized R& D institutions. Still few or not tangible, new and useful technology products or innovations were produced.
There are several possible explanations for this. It could be that all or most of the research funds go into basic and experimental as opposed to applied research.
There is no law that binds R& D and academic institutions to refocus their research efforts from basic to applied research. Researchers and lecturers undertake research for purposes of publishing research results and getting promoted. A wellcrafted and effectively implemented National Intellectual Property Management Law for Publicly Funded Research and Development can help address this situation. As alluded to earlier, several countries have done so and are now major players in both R& D and IP spaces.
This write up is not intended to portray the introduction of a National Intellectual Property Management Act for Publicly Funded Research and Development as the sole and wonderful remedy for improving technological innovation in Botswana. To improve innovation, a country needs a well- resourced and coordinated National System of Innovation ( NSI). A National Intellectual Property Management Act for Publicly Funded Research and Development can facilitate coordination of the NSI and promote conversion of research results into products and services that support commercialization, industrialisation, economic growth and development.
Botswana seems not to be doing well in terms of technological innovation because some vital ingredients of the NSI are missing. Regarding relevant infrastructure for IP protection, Robert M. Sherwood says, “If people seem to be more innovative in the United States or Europe or Japan, it is not an accident. It is not because of genes or schooling or intelligence or fate.
Human ingenuity and creativity are not dispersed unevenly across the globe. Those talents are present in every country. In some, unfortunately, the enabling infrastructure of effective intellectual property protection is missing”.
Botswana does not have a National IP Management Law for Publicly Funded Research and Development.
Besides, requisite skills such as patent information search and analysis, patent drafting, intellectual property valuation and commercialization are missing too. Once enacted the Law will facilitate acquisition and utilisation of these skills, promote utilisation of all IP generated from publicly funded research and development and the Government will realize value for money expended on R& D.