This is according to patent attorney and executive at ENS Africa, Rowan Forster, who makes a case for patents in his conversation with the Business Hour on Monday (26 April).

Forster’s sentiments come on the back of a March 2021 article by the Harvard Business Review (https://hbr.org/2021/03/elon-musk-doesnt-care-about-patents-should-you ) which implies otherwise revealing that South African born businessman, Elon Musk forgoes patents, specifically with regards to Space X, because he and company believe their competition will end up using their patents like recipe books. The Harvard Business Review says it isn’t just Musk who is adopting that approach when it comes to intellectual property assets, mentioning HBO and Airbnb, in that regard.

Forster kicks off the conversation by explaining that a patent is a monopoly right and is granted to a company by a government so that said business has the unrestricted right to make use or sell an invention for the term of the patent, which is usually 20 years.

When the invention expires the rest of the world is able to make use of the recipe to what Forster deems “the better/advancement of technology”. However, it is this “use of the recipe” that Elon Musk and company object to and as a result have decided to forgo registering a patent completely.

According to Forster, a patent provides an inventor with the right to stop others from copying his/her work, giving the inventor the opportunity to work the idea and obtain rewards for his/creativity and originality.

Patents are different to copyrights in the sense, that the latter is an automatic right, whereas a patent is a registered right, which requires you as an inventor to go through a statutory process to obtain said right.

The ENS Africa patent attorney says ownership is straightforward if you’re an individual or an employee and the inception and development of a creation falls within the ambit of your responsibilities to your employer. In this case, the creation belongs to the employer and the ownership rights for work created by an employee as a part of their duties needs to be clearly outlined via an employment contract to ensure that the parameters are clearly set.

A patent does also protect the rights of the employee should they create something that falls outside the scope of his/her duties and responsibilities at that place of employment. Forster says “ownership” can get murky with regards to software development where a third party is hired to implement an idea and bring it to life, but it wasn’t necessarily their concept.

For a an idea/invention to qualify for patent protection, it needs to be new – globally, not just in South Africa. It also needs to be inventive.