INTRODUCTION
Intellectual property has become increasingly important in today’s creative world economy, driving innovation and economic development. Patents, an integral part of the Intellectual Property ecosystem, are designed to protect inventors and foster innovation by granting innovators exclusive rights over their inventions. However, while patents aim to fuel innovation and protect inventors, one of its fundamental criteria – patent disclosure – can have the reverse effect. In this article, the author explores patent disclosure or publication, and how it may inadvertently encourage copycats and foster a culture of imitation, rather than encourage genuine innovation and creativity.
INTELLECTUAL PROPERTY: A Brief Overview
Intellectual Property (IP) is a universal bouquet of intangible legal rights that protect creations of the mind. They include inventions, literary and artistic works, designs, symbols, names, and images used in commerce. These rights allow creators to control, manage, and benefit from their inventions, artistic works, designs, and brands. The core forms of IP include patents, trademarks, copyrights, industrial designs, geographical indications, and trade secrets. Intellectual Property (IP) laws in Ghana, including the Patents Act, 2003(Act 657), the Trademarks Act, 2004 (Act 664), and the Copyright Act, 2005 (Act 690), etc govern these rights.
PATENTS
Patents are an IP form that grant the holder an exclusive right to an invention. An invention may be a product or a process that provides a new way of doing something or offers a new technical solution to a problem that surpasses trivial solutions.
Patent may protect a product as simple as a household kitchen item like the microwave oven or a machine or a process as complex as a chemical compound production. A patent application often involves the applicant divulging details of his invention and if the application is granted, a term of protection is guaranteed. The scope of protection granted to the patent holder provides him control to exercise economic rights over the invention and subject to public policy, to exclude all others from using the invention, without consent. In Ghana, a successful patent application grants protection for twenty (20) years subject to annual fees.
A typical patent application includes the title, abstract, date, description, drawings, summary, and claims. The Patent Claim(s) provide(s) the scope of protection sought for the invention.
In Ghana, patents are regulated by the Patents Act, 2003 (Act 657) and the Patents Regulations 1996 (L.I 1616).
LEGAL REQUIREMENTS FOR PATENTABILITY:
Generally, the requirements for patentability include:
- Novelty
- Non-obviousness / An inventive step
- Usefulness/ Utility
In Ghana, to receive patent recognition, Section 3 of the Patents Act, 2003 (Act 657) requires an invention to be new, industrially applicable, and involve an inventive step. Additionally, it must not be excluded under the Act. Section 2 lists the unpatentable inventions, including plant varieties, scientific theories, and mathematical methods. It is pertinent to add that the aforementioned must exist before a patent application will be considered.
An invention is considered new if it does not form part of prior art. ‘Prior art’ is where the invention may have been described or used before and is evidence that the invention is already known.
Under Section 3(3) of the Patents Act, the prior art comprises everything – in publication in tangible form or by oral disclosure – that has been disclosed to the public. Also, where the invention would not have been obvious to a person with ordinary skill in the art having regard to the prior art concerning that application, the invention will be considered to involve an inventive step. Moreover, Section 5(5) requires that the patent application contains a clear and complete description of the invention, enabling someone with ordinary skill in the art to replicate it. A core part of the patentability criteria, therefore, is disclosure.
PATENT DISCLOSURE
Describing the invention is a fundamental component of the patent regime. Patent disclosure is relevant to, among other reasons, prevent duplicate research efforts, enable the public to use the invention once the patent expires, and provide a basis for improving the art or invention. It is required that the Patent Claims provide an adequate written description of the invention clearly and concisely. This disclosure must be such that a person of ordinary skill in the relevant field can, based on the information disclosed in the filed application and the general knowledge in the art, perform the invention without “undue burden”, “any inventive effort” or “undue experimentation”. The registration of a patent may be refused on grounds of not making such disclosure. This is to ensure that an applicant does not withhold relevant information that may be necessary for a person skilled in the art to make practical use of the invention, even after the expiration of the patent.
The description often provides a background which the applicant knows can be useful for understanding or examining the invention. Regulation 7 of the Patents Regulations, 1996 (L.I 1616) emphasizes the need for indicating the background art, including the advantageous effects of the invention and the best mode known for carrying out the invention as at the patent filing date. This ensures that there is access to the underlying technology and or process and encourages innovation even after the expiration or termination of the patent, especially where the patent description is extensive or detailed.
CRITICISM OF THE ELEMENT
It may be erroneous to assume that, because intellectual property rights like patents promote innovation and contribute to a creative economy, the assertion that it may stifle innovation is far-fetched.
Despite the potential of the patent system to fuel innovation and provide a record of the invention, the disclosure requirement has demerits. By disclosing elaborate details of an invention, an inventor prematurely reveals their “secret ingredient” i.e. valuable technical knowledge of the invention to the public, including competitors who can use the details to develop similar or improved products. It has the potential of fortuitously acting as an impediment to innovation by influencing inventors and creators to keep their art to themselves. A product invention may be appropriate for patent disclosure as the details disclosed could reveal no more than would be acquired from merely looking at the product. A process invention on the other hand, is more likely to be subject to secrecy, one which patent disclosure does not particularly provide.
While designed to incentivize innovation, patents can paradoxically stifle it. In Ghana where the market is small and IP enforcement is still developing, the detailed information disclosed in patent applications can act as a blueprint for copycats – individuals and corporate bodies who may replicate or slightly modify the invention with minimal infringement risks. In 2023, Ghana ranked 99 out of 123 counties surveyed in the World Intellectual Property (WIPO) Global Innovation Index. Also ranking 85th for innovation outputs, the WIPO Index indicated that patents by origin had seen a downward trend of 7.69% from the previous year. This decline may not be directly linked to disclosure requirements, but it highlights potential challenges innovators can face when imitation is common. In 2018, Coolpad filed a suit against Xiaomi, its Chinese competitor and one of the world’s biggest smartphone brands for infringement and imitation of its patents including its user interface (UI) design.
Some inventors may opt for trade secret protection instead of patents to avoid the risk associated with disclosure, potentially depriving society of valuable knowledge. Recent trends show that increasingly, more firms view trade secrets as more important than patents to protect their IP. It is also reported that as of 2024, trade secret cases filed in the US Federal Court skyrocketed while patent cases filed in 2023 fell to their lowest levels since 2010.
There is also a disparity between large corporations and smaller inventors. While larger entities can afford to file extensive patent portfolios and defend their rights through litigation, smaller inventors may not have the resources to protect their inventions from infringement or imitation.
Disclosure could mean that a standard is created to allow subsequent patent applicants to improve a process or system under patent law, yet the issue of copying arises when a party intentionally takes the idea or process and creates an all too similar design or invention.
RECTIFYING THE PARADOX
This author believes it is essential to strengthen IP enforcement, incentivize voluntary disclosure and boost the education of inventors to rectify the paradox.
Perhaps, one may argue that copying is not necessarily a matter of morality or legality, especially when it is in the public domain. However, addressing the paradox of patent disclosure, particularly in Ghana, implies a strengthened IP enforcement system that ensures inventors are adequately protected from infringement is key. This could involve enhancing the judiciary’s capacity to handle IP cases and increasing resources for IP enforcement agencies. When inventors and related parties have confidence in the protection of their rights, they are more likely to disclose their inventions and contribute to the pool of technical knowledge.
Inventors also need to be better informed about the implications of patent disclosure and adopt nuanced approaches to the protection of their works. They should understand the risks and benefits and be guided on how to craft their applications and patent claims to maximize protection while minimizing the risk of imitation. Inventors may also explore alternative IP strategies such as trade secrets, which do not have a disclosure criterion. This approach could be useful for inventions that are easy to reverse-engineer.
Additionally, incentivizing voluntary disclosure practices—such as tax breaks or grants for inventors who provide detailed information about their inventions —could inspire a more cooperative relationship between patent holders and the public. Despite the existence of patent laws, regulations, and systems, although commendable, stringent enforcement of the rights and penalization of infringement practices would be truly beneficial for innovation, vibrant research, and development in Ghana.
CONCLUSION
This author believes that disclosure is a double-edged sword – continually keeping the fire of innovation burning but with the potential of stifling creativity.
A robust patent regime that facilitates innovation and creativity is thus crucial for economic growth and development. This article does not intend to minimize the plenteous merits of the patent system and IP rights, however, ultimately, inventors and creators must adopt nuanced strategies that maximize the commercial value of their inventions. It is essential to consult a lawyer or law firm with expertise in IP and patents to develop an effective portfolio and strategy for protecting your invention.
REFERENCES
- The microwave oven was invented by Percy Spencer under the title “Method of Treating Foodstuffs”. The application was made in 1945 with Serial No. 620,919 and the patent was granted to the invention.
- A patent claim defines the scope of legal protection for the invention. https://www.wipo.int/wipo_magazine/en/2006/01/article_0007.html
- Supra
The annual Innovation Index report evaluates countries’ progress in their innovation ecosystem and considers metrics such as human capital, research, knowledge creation, and creativity. The Index tracks the innovation abilities of different countries and how different sectors of the country’s economy affect its ability to innovate.
