Ethiopia's World Trade Organization Accession and Maintaining Policy Space in Intellectual Property Policy in the Agreement on Trade‐Related Aspects of Intellectual Property Rights Era: A Preliminary Look at the Ethiopian Patent Regime in the Light of the Agreement on Trade‐Related Aspects of Intellectual Property Rights Obligations and Flexibilities

• DOI: http://doi.org/10.1111/j.1747-1796.2012.00437.x
• Date: 01 May 2012
• Author: Fikremarkos Merso Birhanu
• Published date: 01 May 2012

The Journal of World Intellectual Property (2012) Vol. 15, no. 3, pp. 171–198

doi: 10.1111/j.1747-1796.2012.00437.x

Ethiopia’s World Trade Organization Accession and

Maintaining Policy Space in Intellectual Property

Policy in the Agreement on Trade-Related Aspects

of Intellectual Property Rights Era: A Preliminary

Look at the Ethiopian Patent Regime in the Light of

the Agreement on Trade-Related Aspects of

Intellectual Property Rights Obligations and

Flexibilities

Fikremarkos Merso Birhanu

Addis Ababa University

After having stayed as an observer for about 6 years, Ethiopia formally applied for membership at the World

Trade Organization(WTO) in January 2003, and it has since been going through the accession negotiations.One

of the areas of scrutiny by the WTO members as part of the accession process has been Ethiopia’s intellectual

property (IP) regime. Indeed, a number of issues were raised in relation to Ethiopia’s IP regime in the three

roundsof questions the country received from WTO members. In its repliesto the questions from WTO members,

Ethiopia has promised to revise this lawin the light of the Agreement on Trade-Related Aspects of Intellectual

Property Rights (the TRIPS Agreement). The accession process has thus givenimpetus for Ethiopia to embark

on a reform of its IP regime, which is being carried out in two fronts: the enactment of new IP laws in areas

where little or none existed before, and revising existing IP laws, particularly the patent law. This article analyzes

Ethiopia’spatent regime in light of the TRIPS Agreement, identifies the obligations that might need to be met as

part of the accession, as well as the flexibilities that might be available to Ethiopia as a least-developed country

(LDC).

Keywords Ethiopia; flexibility;patent regime; TRIPS Agreement

With a total land area of 114 million hectares and a population of about 80 million, Ethiopia is the

ninth largest and the second most populous nation in Africa. It is one of the Sub-Saharan African

countries in the official United Nations(UN) list of least-developed countries (LDCs). The Ethiopian

economy relies heavily on agriculture, which contributes about 50% of the GDP, 90% of export and

84% of total employment (Ministry of Finance and Economic Development [MoFED], 2007, p. 25).

Agriculture in Ethiopia is dominated by small-scale farmers who are responsible for 95% of the

cultivated land, mainly forsubsistence needs (MoFED, 2007, p. 84). Not surprisingly, agriculture has

been at the center of national development thinking and an agriculture-leddevelopment strategy has

been the overarching development policy in the country wherefood security and poverty alleviation

feature prominently.Following the end of the centrally planned economic order in 1991, Ethiopia has

undertaken different reform measures in its economic policy, including domestic and foreign trade

policy, along the lines of market economy principles. An attempt is also being made to consolidate

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Fikremarkos Merso Birhanu Ethiopia’s WorldTrade Organization Accession and Maintaining Policy Space

the measures taken atthe national level by integrating the country’s economyinto the world economy

by acceding to the World Trade Organization (WTO; WTO, 2011).

In recognition of the important role of Research and Development (R&D) in science and tech-

nology for socioeconomic development, the Transitional Government of Ethiopia (TGE) issued the

National Science and Technology Policy (NSTP) in 1993 with the objectives, inter alia, to build na-

tional capability to generate, select, import, develop, disseminateand apply appropriate technologies

for the realization of the country’s socioeconomic objectives, and to promote the development of

traditional, new and emerging technologies (Science and Technology Commission, 1993, p. 3). The

NSTP aspires to achieve these objectives by building the capacity to research, select, negotiate, pro-

duce and exchange; by introducing technologies suitable to Ethiopia’s socioeconomic conditions as

well as by encouraging the private sector and its capital to participate in the promotion and de-

velopment of scientific and technological activities. The patent system was taken as one strategy in

the NSTP, which specifically sought to establish an efficient patent and technology transfer system

so as to support local technological innovations and creative activities. The patent system was thus

envisioned as an instrument to promote local innovation and transfer of technology.

However, like in other LDCs, investment in R&D in Ethiopia has been limited; the average

share of R&D in national GDP from 2005 to 2008 has been 0.17% (TradingEconomics, 2011).

Understandably, much of the limited R&D investmentshave been made in the agriculture sector.The

role of private sector in R&D has been insignificant, and the little research so far has been carried

out almost exclusively by the public sector (Mengiste, 2006).

As could be gathered from the NSTP, the patent system is seen as an important tool to promote

local innovation and to encourage the transferand adoption of foreign technology with the ultimate

goal of building national technological capacity and assisting in the economic development of the

country. The preamble of the Proclamation Concerning Inventions, Minor Inventions and Industrial

Designs1(the Patent Proclamation) also reiterated the standard utilitarian objectives for patent

protection: to encourage local inventive activities so as to build technological capability; and to

encourage the transfer and adaptation of foreign technology.

Whether intellectual property (IP) protection in general and patent protection in particular

encourages local innovation, facilitates transfer of technology and thereby promotes economic de-

velopment or whether it hurts technical progress and economic developmentby restricting access to

knowledge has been the subject of an important discourse for long. In general, Intellectual Property

Rights (IPRs) are seen as one among a multitude of factors, which may affect innovationor transfer

of technology (UNCTAD-ICTSD, 2005, p. 15). Factors that may impact innovation or transfer of

technology include the sector of the economy, the economic status of the country in question, market

regulation in the country and the development of other competition regulations in the market and

R&D capability and infrastructure (Lall, 2003; Markus, 2000). In particular, economic researchers

question the role of IPR in innovations and transfer of technology in the context of LDCs. It has

been argued that the small marketsizes of LDCs in particular would not provide adequate incentives

for changing either the level or direction of total R&D expenditure, even under strong IPR regimes

such as those in developed nations and such considerationsas marketing strategies and the difficulties

in copying and imitating are likely to be more important than IPR protection (Fink and Maskus,

2005, p. 20; Markus, 2000). On the other hand it has been argued that, at certain stages of develop-

ment, weak levels of IPR protection are more likely to stimulate economic development and poverty

alleviation than are strong ones (Chang, 2002; Kim, 2003). The channels of acquiring knowledge

for LDCs are usually through imitation of existing technologies, reverse engineering and applying

knowledge and technologies described in patent papers. In that regard, patentsmay become barriers

in acquiring technology and, given the state of R&D and innovation in LDCs, these countries have

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The Journal of World IntellectualProperty (2012) Vol. 15, no. 3