Footprints

Laying the Path: Intellectual Property for Innovation and Economic Development

McLean Sibanda

• Publisher: Tracey McDonald Publishers
• Year: 2021
• ISBN:
  9781920707224
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

Footprints is a captivating story about intellectual property (IP). It speaks to its role in society, trade, industry, and economy and expounds on the actual meaning of IP. The book lays a solid foundation for innovators, entrepreneurs, businesses, and nations to realise their full potential through IP policy, legislation, use and practices.

McLean Sibanda shares his personal story, together with stories and testimonies of fellow travellers, taking us through their journey into the field of IP. He meticulously recounts South Africa's path in transforming the management of IP emanating from publicly financed research and development (R&D), development of critical human capital and other infrastructure to ensure effective IP commercialisation and technology transfer.

Footprints is a timely masterpiece given IP issues in Africa's scramble for Covid-19 vaccines and implementation of the agreement establishing the African Continental Free Trade Area (AfCFTA). The book provides strategies of how African countries can use IP and innovation to develop industries to ensure health security and trading of goods that can benefit from the AfCFTA.

Narrated through a series of significant moments, Footprints demonstrates the importance of vision, solid foundation, collaboration, champions, and intentional steps, for economic transformation. With glimpses into how countries such as China and Korea used IP to develop their economies, this book makes a compelling case for embracing IP, increased R&D investment, relevant human capital, and appropriate use of IP, in the development of new products and services necessary for knowledge-based and industrialised economies.

Footprints is a must-read for any academic, aspiring intellectual property scholar, policy maker, economist, development activist, entrepreneur, researcher, innovator, professional, and technology transfer specialist.

Intellectual property is everywhere around us and impacts our lives. For entrepreneurs and businesses alike, intellectual property is about value creation, it is the insurance you need for when you succeed. – McLean Sibanda

FOOTPRINTS

LAYING THE PATH

Intellectual Property for Innovation and Economic Development

Chronicles of Intellectual Property and Innovation for Development – with Perspectives from Fellow Travellers

McLean Sibanda

Praise for Footprints

Chapter 5 of McLean Sibanda’s Footprints represents an era of modernisation of government’s legislation, policies and programmes, leading to institutional advancement in the South African Science, Technology, and Innovation (STI) landscape. The collective human effort and contributions leapfrogged South Africa’s STI to new paradigms that promised greater outcomes for society. I am grateful for the opportunity to have partnered with a person of McLean Sibanda’s calibre in navigating the gruelling process of developing and passing the Intellectual Property Rights from Publicly Financed Research and Development Act during that time.

The political leadership and unyielding support our work enjoyed under the Minister of Science and Technology, Dr Mosibudi Mangena is a story of heroism and generosity of spirit that still needs to be told.

I am yet to encounter a humbler human being than McLean Sibanda, a multifaceted global expert, and deeply intellectual authority, and a true son of the African soil.

Dr Boni Mehlomakulu

Business Executive and Non-Executive Director; Former Deputy Director General, Department of Science and Technology

McLean is a visionary with a fine-tuned sense of reality, as Footprints aptly demonstrates.

Footprints is a read no one interested or involved in IP matters should miss! The book is not only about IP and its importance and how to deal with it successfully, it is far more.

Politicians responsible for economic, technological and scientific development of the country and the African continent should learn from Footprints how to arrange the IP system to serve the national economy best. It is an important tool for incentivising genuine national innovation and fostering international competitiveness, by supporting technology transfer from abroad and to foreign areas.

Prof Joseph Straus

Professor of Law Universities of Munich and Ljubljana, Director Emeritus, Max-Planck-Institute for Innovation and Competition, Munich, Former NIPMO-UNISA Chair for Intellectual Property, UNISA, Pretoria

I highly recommend Footprints; it is a recommendation informed by the realisation that we all need to add more knowledge to our existing knowledge; and more truth to our current truth. As an active user of intellectual property and continuing to seek new ways to create new innovations, this book opens up even more avenues for tapping into the many resources that will make the journey that much more enjoyable, and hope you will also find the same value.

Themba Baloyi

Entrepreneur, Business Executive and Founder of Discovery Insure Ltd

First published by Tracey McDonald Publishers, 2021

Suite No. 53, Private Bag X903, Bryanston, South Africa, 2021

www.traceymcdonaldpublishers.com

Copyright © McLean Sibanda, 2021

All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission from the publisher.

ISBN 978-1-920707-21-7

e-ISBN 978-1-920707-22-4

Text design and typesetting by Patricia Crain, Empressa

Cover design by Tomangopawpadilla

Digital conversion by Wouter Reinders

CONTENTS

Title page

Praise for Footprints

Imprint page

Dedication

REFLECTIONS ON MCLEAN SIBANDA AND FOOTPRINTS

FOREWORD

INTRODUCTION

PART I INTELLECTUAL PROPERTY MATTERS

Chapter One Why Bother With Intellectual Property?

Chapter Two Demystifying Intellectual Property

Chapter Three Significant Moments That Shaped My Approach To Intellectual Property And Innovation

PART II LAYING THE FOUNDATIONS IN SOUTH AFRICA

Chapter Four South Africa’s Intellectual Property Journey – Dawn Of A Democratic State

Chapter Five South Africa’s Intellectual Property Journey – The Formative And Consolidation Years

Chapter Six Reflections From International Experts And Advisors On South Africa’s Intellectual Property Journey

Chapter Seven Developing Intellectual Property Management Capacity

Chapter Eight Personal Journeys Of Beneficiaries Of Capacity Development Initiatives

Chapter Nine Enabling Innovation Through Commercialisation Of Results Of Publicly Financed Research

Chapter Ten Reflections On The Role Of The Innovation Fund In Intellectual Property And Innovation

PART III THE FUTURE IS IN AFRICA

Chapter Eleven Africa, Knowledge Economy, Hope

Chapter Twelve Importance Of Research And Development For Intellectual Property And Innovation

Chapter Thirteen Builders And Makers – Towards Economic Prosperity

Chapter Fourteen My Personal Experiences In The Rest of Africa

Chapter Fifteen Reflections On Collaborations With McLean Sibanda And Other Emerging Intellectual Property Issues in Africa

Chapter Sixteen The Visionary With A Fine-Tuned Sense Of Reality

CONCLUSION

ACKNOWLEDGEMENTS

ABOUT THE AUTHOR

STAY IN TOUCH WITH McLEAN SIBANDA

ENDNOTES

This book is dedicated to the sons and daughters of Africa, especially the youth. May the chapters that follow bring greater awareness of the importance of intellectual property in society; and also be a reminder always that we have to plant seeds of prosperity to earn the right to be at the harvest.

#PurposefulSteps to #MakeItCount

REFLECTIONS ON McLEAN SIBANDA AND FOOTPRINTS

By Themba Baloyi

Entrepreneur and Founder of Discovery Insure Ltd

I have known Dr McLean Sibanda since March 2016 and have come to truly appreciate his humility and deep, intellectual leadership that encompasses everything he chooses to do. It is often said that there’s value in rarity and McLean is that extremely rare inspirational leader whose unpretentiousness makes him a rare diamond, and a cut above the rest. In all my discussions and face to face interactions with McLean, I have found an authentic gentleman with a substantive appreciation for multiple perspectives, which I often call the ‘gift of multiple sources of reference’. The power of multiple sources of reference lies in demonstrating that ideas come from everywhere – and that is what intellectual property is also all about – which Dr Sibanda proves by his actions.

McLean brings to the surface an important intellectual property conversation that is crucial and mostly misunderstood. This is the work done by Dr Sibanda and his colleagues, to have at our fingertips for those opportunities that make a positive impact on our world. Footprints is an important repository of the work that has been done – and continues to be done – in this essential field of intellectual property.

Intellectual property is an integral part of our lives, but it is invisible to the many people who are daily users of the solutions and products that directly impact their lives. It is grossly understated by those who do not know the resultant global impact of countless developments humanity has experienced – and will certainly see for generations to come. On the other hand, those who actively use intellectual property to create valuable solutions and who appreciate the impactful power and its consequential essence of possibilities, eventually become the heroes in the history books.

The most visible manifestation of intellectual property value is seen in entrepreneurs who use it to generate large financial rewards, such as the IT and pharmaceutical companies, just to name two. It is also true that there are many intellectual property producers who do not use their intellectual property contribution for financial gain, and yet their contribution has immeasurable impact in people’s lives. A good example would be certain climate and space researchers.

I have always maintained a strong view that the purpose of entrepreneurship and the resultant businesses that are born are primarily for solving real problems in a self-sustaining manner, which is the net surplus or profit generated from the value created. Beyond the surplus or profits generated by those enterprises, the fundamental value add is to make a positive difference by delivering real solutions to society.

This book captures the essence of the timelessness of documented knowledge that is often lost through oral storytelling in many societies – and especially on the African continent. The power of clearly recorded experiences and knowledge, coupled with the ability to transmit those experiences to countless people makes the difference. They are the value creators who build a better future.

This record of the experiences of intellectual property development and the resultant opportunities, is clear inspiration for those who are innovators and entrepreneurs to open numerous avenues and opportunities. The contribution in this book to the body of practical knowledge is an essential guide for the new reality of bolder and bigger breakthroughs.

Having personally travelled the journey of creating an innovative business to combat road fatalities in South Africa, I am fully aware that ideas come from everywhere and, in most instances, from the most unlikely places. It is therefore important to encourage value creators to keep expanding their knowledge – because innovation is born from continual seeking and exploration.

I highly recommend Footprints; it is a recommendation informed by the realisation that we all need to add more knowledge to our existing knowledge; and more truth to our current truth. As an active user of intellectual property and continuing to seek new ways to create new innovations, this book opens up even more avenues for tapping into the many resources that will make the journey that much more enjoyable, and hope you will also find the same value.

FOREWORD

According to the United Nations Conference on Trade and Development (UNCTAD), intra-African trade was at a paltry 16.6% in 2017. African countries trade with faraway countries on other continents far more than they do with their neighbours. Trade among Asian countries in the same period was well above 50% and among Europeans it was above 68%. Furthermore, African countries tend to export raw materials to other continents and import finished, value-added and technologically advanced goods and services from other continents, some of which are made from their own exported natural resources. This means that African countries have their communication links, such as roads, rail, sea, telecommunication and air infrastructure aligned to these peculiar trade relations. It also implies that Africans know more about the cultural and linguistic attributes of other people on other continents than those of their neighbours. For a very long time, Africans have decried this fact. After many years of back-and-forth discussions and debates at the African Union, the African Continental Free Trade Area (AfCFTA) was agreed upon and came into effect on 1 January 2021.

Putting aside the woefully inadequate communication links alluded to above, the question is: what goods will African countries be exchanging if manufacturing on our continent is so puny? To what extent will the rules of origin of the goods, or part thereof, scupper meaningful free trade among African countries?

McLean Sibanda’s book, Footprints, goes to the heart of these issues. The book demonstrates the critical importance of research, development and innovation in the building of competitive and strong economies. The simple and straightforward fact is that it is almost impossible to get involved in any meaningful and impactful manufacturing if you do not engage in research, development and innovation. Further, you need to scrupulously register, protect and utilise your intellectual property so generated. You are on the road to serious manufacturing of goods and services once you start seeing patents registered with the competent authorities in your country and any other appropriate jurisdiction. Of course, although less desirable, you may manufacture under licence from owners of intellectual property or patents who are based elsewhere in the world.

A painful and instructive example is the plight of Africa with respect to access to vaccines during the COVID-19 pandemic. Whilst other continents are vaccinating their citizens by the million, Africa sits at the tail end, waiting for a trickle of some vaccines and begging others to donate some to them, or give them permission to use the intellectual property of others to allow them to manufacture the vaccines in Africa.

It stands to reason that African countries will have to pay particular attention to scientific research and development in order to build a more competitive economic environment on the continent.

I first became aware of McLean Sibanda around 2005/6 when I was minister of science and technology in South Africa. It was a particularly hectic, fascinating, energetic and exciting period in the science and technology space in South Africa. Various ideas were flying around and some were at different stages of implementation. The Square Kilometre Array (SKA) was being built, the South African Space Agency was being established, the Technology Innovation Agency (TIA) was in the works, and the now aborted electric car, the Joule, was taking beautiful shape. All these were accompanied by a slew of bills that I had to pilot through parliament into laws that would govern their activities and enable them to receive the necessary budgets from National Treasury.

I became acutely aware of Sibanda during our preparation, drafting and finally enacting in parliament, the Intellectual Property Rights from Publicly Financed Research and Development Act of 2008. It was a particularly difficult bill to draft, beating a new path as it did, in the South African context. I remember some of our officials, including McLean Sibanda and Boni Mehlomakulu, being sent abroad to research, interview and consult experts in different countries in order to ensure that the world best practice in our law wa...