Patent battles over intellectual properties

When Faulu Kenya took Safaricom to court over what they termed as infringement of their intellectual property rights, everyone hearkened to the arguments coming from the corridors of justice.

We had heard of these things called IPs for quite some time, debated them even on social media and analysed mountains of claims and counterclaims by musicians, but this... this was huge. These were two bulls locking horns in our very midst. Somebody was bound to suffer a bloody nose.

Yet this was not the first time that a major battle had started to brew over the products of one’s intellect. Not by far. The guidelines on the use of intellectual property rights have been with us for eons, only that little has been done to enforce them, or few have had reason to head to the courts to challenge an infringement.

But do not be fooled, intellectual property remains serious business and may have you and your company cooked in a jiffy.

Knowledge can be shared, but the products of one’s intellect cannot be abused willy nilly. You will pay a heavy price for it.

And there is a good reason for it. Creators claim they put a lot of time and energy into their work for anyone to happen into the scene and cart all that effort away. The products of those efforts, then, must be covered by all manner of legal abracadabra such as patents, trademarks, industrial designs, geographical indications and copyright.

Across the world, patenting is emphasised by governments, and laws on the same have been created in plenty. In Kenya, the Industrial Property Act, 2001 guards inventors and their works. Yet, even with all these deterrent pieces of legislation, battles still ensue.

The largely acclaimed inventor of the telephone, Alexander Graham Bell, faced his fair share of the war even though he got the first patent for his life-changing achievement.

The Wright Brothers, respected for pioneering the invention of aeroplanes, also landed into a labyrinth of over their ‘inventions’.

They waged court wars across the globe in a bid to ensure they were recognised as the sole inventors of the plane, any type of plane, but in France they were unsuccessful as the courts found out that they had divulged their ideas before putting them in practice.

So, how big, and important, and relevant, is this patent business for Kenya? Here, a few cases from around the world to jog your mind:

Safaricom vs Faulu Kenya over mobile banking

This is the latest battle over industrial property ownership in Kenya and pits the leading telecoms operator and a renowned micro-financial institution over M-Shwari, a banking service offered by the former in conjunction with Commercial Bank of Africa.

What makes this battle even more interesting is the fact that the two are partners in another venture as they depend on one another in the use of M-Pesa, owned by Safaricom, across their mobile banking platforms.

M-Pesa itself has also been subject to patent scrutiny in the past as individuals have come forward to claim its ownership.

Christopher Ondieki, for instance, moved to court in 2008 seeking recognition as one of the originators of the highly successful product. The suit is in the Industrial Property Tribunal waiting determination. He said he invented M-Pesa’s upgraded technology that allowed users to transfer money in US dollars and in Kenya shillings, and to and from bank accounts.

Over M-Shwari, Faulu Kenya went to court on December 11 last year claiming Safaricom had copied their idea of mobile banking.

The matter is still in court, but the micro-finance institution has lost an appeal to stop the telecom from rolling out the product until the matter is fully determined.

M-Shwari was rolled out to the market on November 27, 2012 with the promise to enable the operator’s subscribers make savings and get loans — maximum Sh20,000, repaid in 30 days at a 7.5 per cent interest rate.

The case is at the High Court, and the bone of contention, according to Faulu, is that Safaricom rolled out an idea the bank had shared with them just as they were about to launch it with Airtel Kenya as Kopa Chapaa.

The Wright Brothers

The Wright brothers were two American inventors who are widely credited with inventing and building the world’s first successful airplane and making the first controlled, powered and sustained heavier-than-air human flight on December 17, 1903.

Even though they finally conquered the air with their invention, they were soon in the courts trying to protect their monumental breakthrough. The epicenter of their war was on the patent they received for an airplane’s flight control.

After unsuccessfully jotting down their patent, they sought the services of an attorney, Henry Toulmin, who took two years to successfully register the patent, number 821393, in 1906 with the US patent agency.

After acquiring it, the brothers initiated an all-out war on individuals and companies who produced planes using similar technology without their consent. In the US, their focus was on Glenn Curtiss, another plane maker who happened to have also come up with his version of a plane.

The court cases are widely believed to have hindered further plane development as the Wrights spent too much time in court instead of in their labs. They took their war as far as Europe, where they haunted the French for a decade until the expiry of their patent in 1917.

Between Samsung and Apple, who has been copying whom?

Apple Inc and Samsung are the leading manufacturers of smartphones, but over recent years have focused their energies on each other rather than on their workshops.

Their finger-pointing centres around the copying of patented landmark products. In court they have each scored remarkable victories as the fight, interpreted by analysts as a battle over a lucrative market rather than patents, rages on. The mobile phone telephony market is, after all, estimated at about $350 billion.

Last August, Apple won $1.05 billion in an enormous penalty awarded by a nine-member jury who entirely agreed that the US firm had proven its case against Samsung Electronics Co, a South Korean company found liable for copying the designs of the iPhone smartphone and the iPad tablet.

Despite the huge payout, Samsung outdid its fierce rival after it sold about 62 million smartphones (mostly SIII Galaxies) in the last quarter of 2012, compared with Apple’s 45 million iPhones).

In October last year, Samsung sued Apple in California over the launch of the iPhone 5, which it argued violated five of its patents.

But in a show that the company could be getting fatigued by the numerous court sessions, it said: “We have always preferred to compete in the marketplace with our innovative products rather than in courtrooms. However, Apple continues to take aggressive legal measures that will limit market competition.”

Steve Jobs, Apple’s founder, once declared a “thermonuclear war” to prove that phones run on Google Android operating system copy the iPhone. He died before achieving that, but Apple has pressed on with the war.

Who invented the telephone?

The telephone might have been a mighty invention, but the controversy surrounding that invention stalks the man credited with it even today. The battle has existed for years, in fact, since Bell was given the patent in 1876, and this January entered its 137th year.

As it stands, a solution may not be found any time soon. The bone of contention is that Bell, the great inventor, may have stolen an idea that presented him with the breakthrough in the making of the device.

Some historians argue that Bell stole the idea from Elisha Gray, who only delayed by hours to patent his model, therefore allowing Bell the chance to get the sole patent for the idea.

The controversy was inflamed by a Washington Post article titled ‘A Most Amazing Story’ in 1886 that purported that Zenas F Wilber, a former Washington patent examiner, had sworn in an affidavit that he had been bribed by an attorney for Alexander Graham Bell to award Bell the patent for the telephone over a rival inventor, Elisha Gray, who had filed a patent document on the same day as Bell in 1876. Bell was the fifth entry of that day, while Gray was 39th.

And the radio set?

Although several inventors have laid claim to pioneering the use of radio waves, a contest between Nikola Tesla, a Serbian-American, and Guglielmo Marconi, English-Italian, exists until today.

In 1885, Tesla had come up with powerful signals that could be transferred and received when tuned at similar frequency. He was to test the signals in New York but fire gutted his lab before he could do so.

Another inventor in England, Marconi was building a device that would use wireless telegraphy and got the patent in England in 1896. However, when he applied for patenting in the US in 1900, he found out that Tesla had already been awarded one in 1897.

He got back the patent in 1904 when the US Patent Office reversed its previous decisions to award Tesla the patent and gave him the nod for the invention of radio. Marconi went on to win a Nobel Prize for radio invention in 1911.

But the fight was not over yet as the same Supreme Court overturned the decision and awarded Tesla the patent in 1943, but he was not able to savour it as he has been allegedly murdered a few months earlier by Otto Skorzeny, a close friend of Adolf Hitler.

Tussle over Internet advertising innovations

Although it was brief, the patent war in 2012 between Yahoo! and Facebook culminated in a partnership after they agreed to cross-patent some of the products in contention.

Yahoo! had sued Facebook over the use of 10 of its patents, which included methods and systems for advertising on the Web.

The exchange marked the beginning of a battle over products pitting, for the first time, social media designers.

The accusations came as Facebook was preparing for its Initial Public Offer in May and Yahoo!’s move was seen as an attempt to curtail the Offer.

Facebook founder Mark Zuckerberg has himself been for long under fire from former classmates at Havard University, the Winklevoss twins, who claimed that he stole the Facebook idea from them. Zuckerberg paid the twins the princely sum of $65 million to settle their case and solely lay claim to the idea that bore the social media site boasting of over one billion users by the beginning of the year.

As the two were warring, Twitter, another social media website, was going the other (peaceful) way. The site announced an internal patent agreement they said was meant to empower designers and engineers and attempt to stop the rush to institute lawsuits.

The agreement, received well in the patenting world, was titled the Innovator’s Patent Agreement (IPA) and said that Twitter would not pursue offensive litigation over patents without the consent of the employees who created them.

Registering your patent: Kenya Industrial Property Institute

The institute is tasked with offering patents in Kenya and was established by the Industrial Property Act of 2001. Kipi’s managing director Henry Mutai says there have not been major patent contestations in Kenya despite them receiving over 100 applications every year since the facility was set up a decade ago.

But, even though contests have been kept at the minimum, Dr Mutai says the number of litigations could go up as young inventors now know about the need to guard their inventions... and the goodness of doing it.

To qualify for a patent certification, he advises, an invention has to be “new, non-obvious and useful”. Application documents are available on the institute’s website (www.kipi.go.ke) or at their offices in South C, Nairobi.

For registration, an applicant has to fulfil all the requirements, including substantiating the invention beyond any reasonable doubt, and paying a Sh10,000 fee.