Patenting in Africa
The African continent has more than 50 states and an inventor may be hesitant to patent an invention in all of these states considering the high cost.
Fortunately, however, Africa has two multinational organisations for the protection of intellectual property rights. Collectively, these organisations represent more than 60 percent of African states.
The first of these organisations is the African Intellectual Property Organisation (OAPI). OAPI was established by the Bangui Agreement Relating to the Creation of an African Intellectual Property Organisation on March 2, 1997.
OAPI has 16 member states: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Republic of Congo, Senegal and Togo. The OAPI system provides for a single legal system wherein various forms of intellectual property, including patents, may be registered and maintained in OAPI member states. Member states recognise the provisions entrenched in the Bangui Agreement and its annexes as their national law.
A patent under OAPI may be granted for a new invention that shows inventive step and industrial applicability. The granted patent automatically extends to all OAPI member states.
The African Regional Intellectual Property Organisation (ARIPO) is the other African multinational organisation. ARIPO was created in 1976 at Lusaka, Zambia, when the Agreement on the Creation of ARIPO was adopted. ARIPO currently has 17 member states: Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
The Harare Protocol on Patents and Industrial Designs of 1982 empowers ARIPO to grant patents and to administer such patents on behalf of its member states. In contrast to OAPI, an applicant for a patent under ARIPO may designate any one or more of the ARIPO member states where protection is required.
"A PATENT UNDER OAPI MAY BE GRANTED FOR A NEW INVENTION THAT SHOWS INVENTIVE STEP AND INDUSTRIAL APPLICABILITY. THE GRANTED PATENT AUTOMATICALLY EXTENDS TO ALL OAPI MEMBER STATES."
The ARIPO system does not replace the national laws of its member states. A patent granted under ARIPO will have the same effect as a patent granted under the national law in a designated state. If a proprietor of an ARIPO patent wants to enforce his patent in a designated member state, the proceedings will be decided according to the national laws of that member state.
Although the ARIPO patent system requires absolute novelty for an invention to be patentable, some member states (Botswana, Gambia, Ghana, Kenya, Lesotho, Mozambique and Uganda) provide for a novelty grace period subject to certain requirements.
The enforceability of patent rights flowing from an ARIPO patent in Namibia, Sierra Leone, Sudan and Tanzania are doubtful, as the national laws of these states have not been amended to recognise an ARIPO patent.
Tanzania consists of mainland Tanzania and the island of Zanzibar. Although these two states are politically united, as the United Republic of Tanzania, they have their own laws and systems relating to intellectual property. A patent application filed in mainland Tanzania does not extend to Zanzibar.
On September 13, 2008, a new Industrial Property Act (IPA) came into force in Zanzibar, replacing the Patents Decree that regulated patent matters in Zanzibar in the past. No implementing regulations have been promulgated since. The IPA contains comprehensive provisions for the registration of patents in Zanzibar.
However, in the absence of the implementing regulations, it is practically impossible to file applications under the IPA. In the absence of implementing regulations, the patent registration process under the repealed law is still followed. According to this process, a UK patent may be, within three years of grant, extended to Zanzibar.
Sierra Leone has a similar procedure to Zanzibar. In Namibia, Sudan and mainland Tanzania, a national patent application should be filed. Somalia has not yet acceded to the Harare Protocol or the Paris Convention, and as a result, patent protection is obtainable only by way of a national filing. A national patent application has to be filed in the African states that are not members of either OAPI or ARIPO.
