Debunking the ‘SANi patent’ myth
We have recently received an influx of enquiries from clients regarding the possibility of filing a so-called "SANi patent”. While scratching our collective heads, we quickly realised that the SANi patent is a title bestowed upon a non-existent ‘regional patent’ that supposedly grants patent protection in both South Africa and Nigeria.
The catchy name probably draws inspiration from the “SA” acronym for South Africa and the “Ni” in Nigeria but could also conjure up imagery of the Sani Pass that connects South Africa and the mountain kingdom of Lesotho or the Nissan Sani vehicle, popular in the last century for rugged, pan-African road trips.
In fact, the name is so memorable, and the concept is so clever, that it is easy to see why our clients want to file one.
Unfortunately, there is certainly no SANi patent and it is important for us to debunk this myth and ensure that you understand the territorial nature of patents and the ins and outs of some of the aspects of the African intellectual property landscape.
The myth of the ‘SANi Patent’
The so-called “SANi patent” has its roots in the concept that patents are tied to individual countries and the perception of the existence of a ‘worldwide patent’ is a fallacy. While some regions have collaborative treaties where a single patent provides protection for a number of treaty states, South African and Nigerian patents, result in distinct and separate territorial rights, each issued by its respective national authority.
So, the SANi patent is essentially a clouded myth born from the forced marriage of two separate national patent systems.
Speaking of regional treaties, Africa does, in fact, have two regional treaties that established the African Regional Intellectual Property Organization (ARIPO) and Organisation Africaine de la Propriété Intellectuelle (OAPI) intergovernmental organisations.
These treaties make it possible to secure patent protection across multiple African countries. However, it's worth noting that neither South Africa nor Nigeria are members of ARIPO or OAPI.
Key IP law differences
Furthermore, there are some key differences between South African and Nigerian patent laws. For example, Nigerian patent law allows for the patenting of medical methods of treatment, which are expressly excluded in South Africa. Also, an applicant must file an application for a Nigerian national patent within 30 months from the earliest filing date of an application in respect of an invention, whereas South Africa offers a 31-month filing window.
Considering these and other complexities of patent law, it is wise for inventors and applicants to obtain accurate advice regarding the best mechanisms for obtaining patent protection in South Africa and Nigeria.
Finally, to put the "SANi patent” myth to rest, it is essential to understand that South African and Nigerian patents are like parallel tracks—they do not intersect. There is no treaty for the seamless merging of patents between them, as with ARIPO or OAPI.
In reality and despite what the name seems to suggest, the so-called “SANi patent” is not a happy union of two national patent systems, but rather the juxtaposition of two distinct, national systems, and obtaining protection in these countries still requires the filing of two separate national patent applications and the observance of the respective country’s national laws.
While South Africa and Nigeria are economic powerhouses on the African continent, accurate information on the territorial nature of patent protection is vital for devising patent filing strategies through robust patent systems to foster innovation and drive economic growth. The "SANi patent” might at first sound captivating, but it has much in common with a unicorn—although alluring, it is only a creature of imagination.
Marco Vatta is a partner at Spoor & Fisher. He can be contacted at: m.vatta@spoor.com
