the patent system in africa (good notes for protecting patents and the situation of egyptian ip)

8/7/2019 the patent system in africa (good notes for protecting patents and the situation of Egyptian IP)

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International Trade Law & Regulation2010

The patent system in Africa: its contribution and potential instimulating innovation, technology transfer and fostering science and

technology: Part 1Getachew Mengistie

Subject: Intellectualproperty. Other related subjects: ScienceKeywords: Africa; Patents; Research and developmentLegislation: Convention for the Protection of Industrial Property 1883Agreement on Trade-Related Aspects ofIntellectualProperty Rights 1994(WTO)

Patent Cooperation T reaty 1970

*Int. T.L.R. 138 IntroductionThe patent system plays a positive role in stimulating local inventive andinnovative activities, and facilitating transfer of technology, therebycontributing to scientific and technological progress and socio -economicdevelopment. The success of the present day developed countries and theemerging industrialised countries in building a solid science and technology (S& T) base and attaining a higher level of socio -economic development ispartly attributable to the patent system, which creates an enablingenvironment for local inventive and innovative effort, as well as the transferand exploitation of foreign technology.The majority of African countries have national patent systems or belong to aregional patent system. In some African countries, the pate nt system is morethan a century old. Unlike developed and emerging industrialised countries,the patent system in Africa has contributed little to stimulating local inventiveand innovative activities, encouraging transfer of technology and enhancing S

& T capacity. The reason behind this problem can be attributed to a numberof factors, including inherent features of the patent system itself. The patentsystems in most African countries did not evolve from developments withinthe countries, but were transplanted and installed during the colonial period.The changes that were made by the African countries later were done merelyfor the sake of having an independent system and/or to comply with therequirements of international patent agreements.The absence of a clear, focused and comprehensive intellectualpropertypolicy guideline and/or non -integration ofintellectualproperty into nationalscience, technology and economic development policies, strategies and plans,lack of patent laws tailored to meet specific needs, weak and non-development oriented institutions that administer patents and inadequateawareness of the patent system have contributed to the insignificant

contribution of patents to S & T development and socio -economic progress. Inaddition to the problems inherent in the patent system, there are non -patentrelated factors, such as inadequate S & T capability and absence ofcomplementary measures including innovation support systems, which can beattributed to the low level of local inventive and innovative activities as wellas ineffective transfer of technology in most African countries.The study, which is based on available literature and supported withexamples of any African country where data was forthcoming, aims to: give an overview of the patent system in Africa and examine the role of thepatent system in stimulating inventive and innovative activities, encouraging


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transfer of technology and contributing to scientific and technologicalprogress; identify the main challenges and be nefits of the patent systems in Africa; provide information on the general trend in patent applications and grantsby African patent offices to nationals and foreigners; assess the extent to which local inventors, firms and research anddevelopment (R & D) centres exploit technological information contained inpatent documents and available in the national and international databases; identify the reasons for the relative failure of the patent system in playingthe assumed and expected role of such sy stems in a number of Africancountries; examine the positive contributions of the patent system in selected Africancountries and identify lessons taking success stories as examples; and recommend ways in which the African patent systems could be improved toencourage local invention and innovation, facilitate technology transfer andserve as effective tool to foster S & T development and enhance socio -economic progress.The article is divided in to two parts. Part 1 of the article aims to provide acontext and a background to the subject. It gives an overview of the

justification for the patent system and demonstrate the link between patentsand S & T development, explains the origin and development *Int. T.L.R.139 of national patent systems in A frica, outlines relevant regional andinternational patent agreements and identifies the impact of the internationalpatent system and bilateral and regional trade and investment agreements onnational and regional patent systems in Africa. The second part of the article,which will be published in the subsequent journal, will examine thecontribution of the patent system in stimulating local inventive and innovativeactivities, supporting R & D effort, facilitating transfer of technology andinvestment, as well as highlighting the reasons for the failure of the patentsystem to contribute adequately to the technological progress of the majorityof African countries, highlight the positive contribution of patents and identifylessons to be learned using conc rete experiences and recommend measures

that may be taken by different key players to ensure the effective use ofpatents in encouraging inventive and innovative activities, fostering transferof technology and contributing to the development of S & T capa bilities inAfrican countries.There is a strong belief that the patent system, if properly used andsupported by complementary measures, can serve as an effective policy toolin enhancing S & T development and realising the development goals andaspirations of African countries.The role of the patent system in enhancing science and technologydevelopmentToday, more than ever before, there is no doubt about the contribution ofscience and technology (S & T) to a country's socio -economic development. It

is an often-quoted statement that the present day disparity between thedeveloped and developing countries is manifested by their varying S & Tdevelopment levels. Countries globally that were at similar levels ofdevelopment to some of African countries 40 or 50 years ago have shownremarkable socio-economic progress as a result of S & T development. Thismay be explained by taking South Korea and Ghana as an example.According to the 1998/99 World Development Report:Forty years ago, Ghana and the Republi c Korea had virtually the sameincome per capita. By the early 1990's Korea's income was six times higherthan Ghana's.


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This was due to Korea's success in building up its S & T capability.S & T development presupposes a certain level of indigenous capabi lity thatincludes, among others things, local inventive and innovative capacity as wellas the ability to acquire, adapt and exploit foreign technology.The patent system, which mainly consists of the legal and institutionalframework for patent registration, plays a positive role in the development ofnational scientific and technological capability by encouraging local inventiveand innovative activities, stimulating transfer of technology and supporting R& D effort by making accessible to innovators te chnological informationcontained in patent documents.An attempt is made below to highlight the roles of patents and demonstratetheir linkage with scientific and technological development.Patents and local inventive and innovative activitiesThe patent system creates a favourable environment that stimulates localinventive and innovative activities and thereby enhancing scientific andtechnological progress. This stimulation comes from the fact that a patentconfers an exclusive right1 of exploitation upon a patentee over his/herinvention and innovation. Third parties may not use or exploit the invention,except under limited circumstances,2 without the authorisation of the

patentee.Invention and innovation are results of a painstaking activity that involvesconsiderable investment of money, time and labour. In the absence of patentprotection, persons who have done very little will be in a position to make useof the invention or innovation with no or little investment. U nder such acircumstance inventors and innovators will be discouraged from engaging in R& D activities, inventive and innovative efforts. This will in turn result in aslow technological progress and low level of socio -economic development.Patent protection helps inventors or holders of patents to recoup their R & Dcost and to obtain a reasonable return from their investment, therebyenabling them to make full use of their potential and further pursue R & Dactivities. This continuous engagement in R & D activities stimulates andencourages inventive and innovative efforts that will result in new

technological developments. Because of this, Yankey argues that the patentsystem spurs R & D through the provision of protection for inventors andmakes possible breaking of new technological grounds. 3The patent system, in addition to the promise of guaranteeing financial returnfrom useful R & D investment, serves as a means of recognition to the *Int.T.L.R. 140 inventor that may result in moral satisfaction and this mayfurther motivate the inventor to pursue his/her inventive endeavours. Patentlaws ensure the inventor's right to be named for his/her invention evenwhere the invention is made in the course of employment and the employer isentitled to own the patent right.4The legal protection for inventions is also believed to generate competition,which further enhances local inventive and innovative effort. Competitors,who are prevented from copying somebody's invention, will be forced toincrease their own R & D effort with a view to attain a technological lead. Thepatentee will likewise be forced to do the same to maintain and furtherstrengthen his/her competitive position.The success of the present day developed countries and the emergin gindustrialised countries in building a solid S & T base and attaining a higherlevel of socio-economic development is, in addition to other factors,attributable to the patent system that creates an enabling environment forlocal inventive and innovative effort, prevents free riders and stimulatescompetition between inventors and their competitors.


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Role of patents in facilitating technology transfer and investmentPast experiences and studies show us that no country in the world is fullyself-sufficient through the application of only local technologies andinvestment. All have reliance to a greater or lesser degree upon foreigntechnologies. The level of foreign in vestment inflow and the degree oftechnology transfer to a country is, among other things, a function of the

country's foreign direct investment policies, and the levels of confidence inthose with technologies to transfer in the property protection regime in thetargeted country, including respect for intellectualproperty (IP) rightsgenerally.The existence of a functioning patent system and an appropriate mechanismfor the enforcement of patent rights are prerequisites for technology transferand investment. Without adequate patent protection, no business iscomfortable in disclosing or transferring its technologies. 5Patents facilitate the transfer of technology directly by stimulating theintroduction of foreign technology, and indirectly, by mak ing availabletechnological information through patent documents. The patent systemprovides security and builds up the confidence of foreign technology ownersto transfer and exploit their patented technology directly through direct

investment or joint ventures or indirectly by authorising third parties in atechnology recipient country to exploit the patented technology via a licensingarrangement.The patent system, which requires the disclosure of technological informationrelated to an invention for which patent protection is sought, furtherfacilitates transfer of technology. This is because the mere availability oftechnological information through patent documents also enables potentialtechnology recipients in the identification, selection and negot iation, etc. offoreign technology. The information helps, inter alia, in alleviating theproblem African countries face in the identification, selection, negotiation,acquisition and transfer of foreign technology due to lack of information onalternative sources of technology. Blakeney explained that a: patent document presents concrete solution of technological problems in a

standard, concise and easily accessible form. The comprehensive informationcontained in patent documents permits receivers of p atented technology tosee precisely what they will be receiving together with an evaluation ofcomparable technology and alternative solutions.6Role of patents in facilitating access to technological information and

supporting R & D effortIn the present global context, the role of traditional production factors,labour, land and money, in determining the technological and economiccompetitiveness of a country is slowly but surely diminishing. What mattersmost for a country's technological and economic competitiveness is primarilyknowledge. Today, more than ever before, the share of knowledge -basedeconomies is growing exponentially. This is evidenced by the increasing share

of intangible assets, which mainly consist of knowledge products, namelyintellectualproperty assets. For example, in 1982, 62 per cent of corporateassets in the United States were physical assets such as land, buildings andmachinery and 38 per cent were intangible assets. But the corporate share oftangible assets had shrunk to a mere 30 per cent by 2000. 7Needless to say the present global economy is best epitomised by theknowledge-based economy. And there is no controversy about the decisiverole of knowledge in determining a country's techno -economic position in theglobal arena. So long as the importance of knowledge for economicdevelopment and technological com petitiveness is undisputed, there is no


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doubt about the centrality of information. In the knowledge based economywhat matters is the availability of information and, of course, the capacity touse it.*Int. T.L.R. 141 The patent system, which provides exclusive rights overinventions for a limited period of time, helps to stimulate technologicaldevelopment not only by providing the requisite protection but also bymaking available valuable technological information through patentdocuments.The grant of a monopoly right over an invention may be regarded as a tradeoff between the state and the inventor. The inventor is granted a limitedexclusive right in return for the prompt and adequate disclosure of his/herinventions so that inventions are not kept s ecret and society benefits from thedisclosure thereof. It is a standard requirement of most patent laws thatpatent applications contain a description that discloses details of an inventionin a manner sufficiently clear and complete to be understood and used by aperson skilled in the related field. 8 The rationale behind this requirement is tofacilitate the use and dissemination of technological information. That is, thegoal is to enable other persons to exploit the invention: upon the expiry of the patent right9 ;

under prescribed conditions during the period of validity of the patentwithout the consent of the patent holder 10 ; or to freely use it for lawful purposes such as research and developmentactivities.11Patent protection is territorial in its nature. If an invention is not protected ina country, it is deemed to fall into the public domain even when it is legallyprotected elsewhere. As a result inventions that are not legally protected inany given country can be freely exploited there. Most of the inventionspatented elsewhere are not protected in Africa. African countries can thusmake use of the inv entions patented elsewhere but not within their territoriesquite freely. It is also instructive to note that inventions that are patentedmay not be protected until the expiry of the term of a patent. According toIdris, the average life of a patent is fi ve years.12 Moreover, only 37 per cent

are maintained or renewed until the end of their term. 13At present more than 40 million published patent documents are available inthe world. The large quantity of the information published, together wi thadditional features, makes patent documents the most valuable source oftechnological information. The information contained in patent documents,amongst others, is more comprehensive, 14 recent15 and applicable16 thanthose contained in other sources such as scientific journals and books.The technological information contained in patent documents has a number ofadvantages. The information helps to solve technological problems byavoiding duplication of effort and waste of investment r esources.Development of technological solutions is a painstaking and costly activity. Itoften requires time, labour and effort of personnel, the availability of thenecessary infrastructure such as laboratory facilities, and information and

documentation services that entail a huge investment and financial outlay.Such an investment will be wasted if an effort is made from scratch todevelop what is already available. The problem of duplication and wastage ofresources, mainly caused by a lack of informat ion and/or absence ofawareness of the importance and nature of the information contained inpatent documents is a serious problem in many countries. The EuropeanPatent Office, for example, estimated that European industry is losing US$20billion every year due to lack of patent information that results from the


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duplication of effort and reinventing products that are already availableelsewhere.17The use of the technological information contained in patent documents willalso enable researchers and competitors to re-orient or fine tune inventive,innovative and R & D activities. The bibliographic data together with thereferences to the relevant prior art and the description of the invention inpatent documents enables researchers and competitors to be informed ofcurrent technological developments and findings in their field and redirecttheir activity.*Int. T.L.R. 142 An overview of the patent system in AfricaGeneralAfrican countries are in different positions in respect to patents, includingnational patent systems and membership of regional patent agreements.Considering the current approaches to patent protection, African countriescan be classified under four categories.There are countries that have:1. no national patent system but belon g to a single regional patent system,which has automatic application in their territories;2. national patent systems and belong to a regional grouping;

3. national patent systems and are not party to a regional patent system; and4. no national patent system and do not belong to any regional patent co -operation arrangements.The breakdown of African countries by categories based on the approach ofpatent protection can be explained as follows:1. The first category includes countries, which have no national patent systembut belong to a single regional system, which has automatic application intheir territories. At present, there are 16 African countries that are membersof a regional patent co -operation agreement administered by the OrganisationAfricaine de la Proprit Intellectuelle (OAPI), where a single and uniformpatent system, which has the same effect as a national patent system in eachof the member states, is implemented. 182. The second category consists of 17 African countries 19 that have their ownnational patent system and also belong to the regional IP systemadministered by the African Regional IntellectualProperty Organization(ARIPO). Under this system, patents granted by the regional organisation willonly be valid in Member States when there is no objection against thegranting of a patent and the validity of the regional patent is governed bynational patent laws of the Member States.3. Under the third category, we find counties such as Algeria, Burundi, Egypt,Ethiopia, Mauritius, Morocco, Rwanda, Seychelles and Tunisia, which havetheir own national patent system, but do not belong to any regionalgroupings.4. The fourth category includes countries that do not have a national patentsystem and also do not belong to any regional patent groupings. Examples of

countries that fall into this fourth category are Eritrea

20

and Djibouti.

21

The national patent systems further differ in their patent granting procedures.Some of the countries require substantive exami nation of novelty andinventiveness while others undertake only formal examination of theapplicant's documentation before deciding to grant or not grant patents. Anexample of the former is South Africa and of the latter is Ethiopia.There are also differences in the membership status of specific Africancountries to international patent treaties. The majority of African countriesare party to one or more of the following international patent agreements,namely: the Paris Industrial Property Convention (PIPC), the Patent


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Cooperation Treaty (PCT) and the WTO-TRIPs Agreement. The status ofmembership of the African countries at October 13, 2009 can be seen in Table1.

Table 1: Status of membership ofAfrican countries to the Paris

Industrial Property Convention(PIPC), the Patent Cooperation

Treaty (PCT) and WTO-TRIPs22

No. Name of

country

PCT PIPC WTO-

TRIPs

1 Algeria x x -

2 Angola x x x

3 Benin x x x

4 Botswana x x x

5 Burkina Faso x x x

6 Burundi - x x

7 Cameroon x x x

8 Cape Verde - - x

9 Central AfricanRepublic

x x x

10 Chad x x x

11 Comoros x x -


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12 Congo x x x

13 Cte d'Ivoire x x x

14 DemocraticRepublic ofCongo

- x x

15 Djibouti - x x

16 Egypt x x x

17 EquatorialGuinea

x x -

18 Gabon x x x

19 Gambia x x x

20 Ghana x x x

21 Guinea x x x

22 Guinea-Bissau x x x

23 Kenya x x x

24 Lesotho x x x

25 Liberia x x -

26 LibyanJamahiriya

x x -


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Arab

27 Madagascar x x x

28 Malawi x x x

29 Mali x x x

30 Mauritania x x x

31 Mauritius - x x

32 Morocco x x x

33 Mozambique x x x

34 Namibia x x x

35 Niger x x x

36 Nigeria x x x

37 Rwanda - x x

38 Sao Tome &Principe

x x -

39 Senegal x x x

40 Seychelles x x -

41 Sierra Leone x x x


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42 South Africa x x x

43 Sudan x x -

44 Swaziland x x x

45 Togo x x x

46 Tunisia x x x

47 Uganda x x x

48 UnitedRepublic ofTanzania

x x x

49 Zambia x x x

50 Zimbabwe x x x

*Int. T.L.R. 143 Table 1 shows that 50 out of the 53 African countries areparty to major international treaties concluded in the field of patents. It isonly Eritrea, Ethiopia and Somalia that have not yet become members of orsignatories to any of the relevant international p atent treaties. It should,however, be noted that these countries are members of the WorldIntellectualProperty Organization (WIPO).22Signing treaties such as the PIPC and TRIPs, which specify minimumstandards, does, to a certain extent, harmonise national patent laws inAfrican countries, while the PCT facilitates the filing of patent applications.In countries that are members of the PCT and the regional patent systems, itis possible to secure patent application by filing a single application u sing thePCT or the regional office route. The applicant may file his/her application

with his/her national office or the World IntellectualProperty Organization(WIPO) designating the regional organisation or Member States of theorganisation. In case of OAPI, patent protection can be secured withoutdesignating member states. Unlike OAPI, an application filed with ARIPO ordesignating ARIPO shall specify the member states of the organisation whereprotection is needed.National patent systemsOrigin and development of the patent system in African countriesFor a number of African countries the origin of the national patent system isassociated with their former colonial status. For example, British patent law


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was introduced in its colonies.23 Also, the colonies were acceded to the ParisConvention by virtue of British membership. Interestingly enough, Britishpatent law was in use after a number of the colonies got their independence.Until late 1980s and early 1990s the patent systems of the majority of theformer British colonies were not independently established at national level. 24Such countries were until recently only re -registering and protecting patentsgranted or registered in the United Kingdom. The laws required residents andnon residents to seek for and secure a UK patent first before their right wouldbe protected in their respective territories. 25 As a result the laws could anddid not contribute to or stimulate local inventive and innovative activities.Inventors who were nationals or residents of the former British colonies wereusually not in a position to cover the travel expense to London, meet the costinvolved in processing of a patent there, and then work to get their inventionsprotected in their own countries.Similarly, French patent law governed patent rights in the former Frenchcolonies of Africa and the French National Patent Rights Institute (INPI) wasthe national authority for each of the colonies then grouped within the FrenchUnion (Union Franaise ) until 1962.*Int. T.L.R. 144 The rest of African countries that were colonised by other

countries were using the patent law of their colonial power. Angola, forexample, was subject to Portuguese law until 1976 and using the law until ithad its own industrial propertylaw in 1992.26The colonial legacy is also reflected by the establishment of regional patentco-operation agreements along language lines and the approaches employedby the regional groupings. A number of Af rican countries established regionalco-operations based on colonial history and language. The former Britishcolonies established the Industrial Property Organization for EnglishSpeaking Africa (ESARIPO) in 1976 under the Lusaka Agreement. TheFrancophone countries set up the African and Malagasy Industrial PropertyOffice, under the Libreville Agreement, in 1962. Furthermore the absence ofnational patent systems, and the uniform patent system that wasimplemented by France during the colonial period, in fluenced the

development of regional co -operation by the majority of the former Frenchcolonies, which were members of the French Union, in establishing anddeveloping the OAPI system. They adopted the common and uniformapproach of administering patents b y concluding a single instrument andestablishing a single regional office that deals with patents on behalf of allMember States.27The patent system, which did not evolve from within but was transplanted tothe African region by the colonial power s, was not meant to promote andmeet the development needs of the colonies but to cater for the interests ofcolonial powers. According to Yankey, the introduction of the patent system inthe colonies was: never meant to encourage either indigenous inve ntive activity, localresearch and development, innovation or to accomplish an effective transfer

of technology but instead it was geared towards the protection of propertyrights in machinery technology relevant for the exploitation of gold and othermineral and human resources in the Colonies.28After independence, a number of African countries begun to change and enactnew national patent laws using the model patent law developed byBIRPI/WIPO.29 Patent laws were directly adopted from WIPO Model Laws,which had to be used as a guideline and modified according to the needs andspecific conditions of the countries concerned. 30 The changes made in patentlaws by many African countries were initially made for the sake of having an


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independent patent system and later to comply with the requirements ofinternational patent laws, such as the TRIPs Agreement in the absence ofclear internal policy direction of using the instruments as a tool for nationaldevelopment. Nnadozie, for examp le, explained that the enactment of anindependent patent law in 1970 by Nigeria was not based on clear nationalindustrial and technology development policy and policy consideration behindadopting the model law.31 The changes that were made after m embership ofinternational patent treaties were often done hastily, just to comply with therequirements of international patent agreements. Little attempt was made totailor the patent system to reflect the specific situations or needs of Africancountries32 and did not take advantage of flexibilities available in theinternational patent system. 33Intellectual property policy in AfricaThe use of patents as an effective development tool presupposes a clearintellectualproperty (IP) policy direction and strategy. Nevertheless, mostAfrican countries do not have clear, focused and comprehensive national IPpolicies. These countries, however, have policies that recognise theimportance ofintellectualproperty as well as policies, strategies anddevelopment plans, which may be supported using IP. These include national

science and technology policies,34

ICT policy,35

development strategies andplans.36It is believed that the absence of a national IP policy in the majority of Africancountries has not helped, among other factors, to integrate IP in to socio -economic development plans nor does it position the use of patents *Int.T.L.R. 145 as a policy tool for development. A number of African countrieshave realised the gap and begun to take measures recently. 37In the majority of African countries, R & D is mainly done in public researchand development organisations and higher learning institutions. The majorityof these institutions have no institutional intellectualproperty policy and noIP management unit or technology transfer office designed to promote thecreation, acquisition, protection and commercialisation of intellectualproperty rights.38 As a result, valuable IP assets have been wasted and not

commercialised.39 This may be due to a number of factors including ignoranceofintellectualproperty,40 the rush for publication to secure academicpromotion41 and the belief that research results made using public money arepublic goods that should be made freely accessible to users. In addition to thelow level of IP awareness and the erroneous belief, lack of a nationa l IP policythat clearly dealt with the issue of ownership of research results made usingpublic resources may have directly contributed to the undesirable situation.Available studies indicate that the absence of a clearly articulated IP policyeither hampers or delays the development of considerable scientific andtechnological progress or the introduction of socially and economicallyvaluable technologies to Africa. Moreover, the lack of clear IP policy mayresult in disputes over research results from joint activities. In this regard,the problem encountered in the joint project between the University ofNairobi and the University of Oxford for the development of an HIV/AIDSvaccine can be mentioned as an example. Although the two universitieslaunched the project to mitigate the most daunting challenge the globalcommunity, in particular sub-Saharan African countries, faces in the 21stcentury--HIV/AIDS--there was a dispute about who should be the owner ofthe patent of the research results. 42 The case highlighted the need for clear IPpolicies for universities as to the ownership of their research results.At present, there is a growing awareness of the need for an institutionalintellectualproperty policy and establishment of a management unit that


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will handle and administer IP matters. A number of academic and researchinstitutions that generate intellectualproperty assets have adoptedinstitutional IP policies, established IP management units or technologytransfer centres and begun protecting and exploiting their IP assets usingappropriate IP tools.43Patent administrative framework

There is no uniform approach to administering patents in Africa. In a numberof African countries patents are being administered by registrar general'soffices, which are entrusted to register companies, associations and titledeeds.44 In some of African countries there are patent offices, 45 industrialproperty offices46 or intellectualproperty offices,47 which deal withpatents.In most cases, patent offices suffer from a number of capacity relatedproblems. Most of the offices that administer patents are understaffed 48 andpoorly equipped. This is a problem of most African count ries, including thosethat are considered relatively developed compared in particular with the 33African countries which are least developed countries. The Registrar General'sOffice of Nigeria, for example is poorly staffed and equipped. 49 Moreimportantly, it may be worthwhile to note that most of the patent related

offices in Africa are staffed with personnel who are not well versed with thetechnical fields in which IP protection is applied for. 50 These offices mainlyfocus on receipt and processing of patent applications. Only few of the patentoffices are engaged *Int. T.L.R. 146 in development oriented activities suchas rendering technological information services to support R & D efforts intheir countries.51

Regional patent co-operationThe African Intellectual Property OrganizationThe African IntellectualProperty Organization (which is known as theOrganisation Africaine de la Proprit Intellectuelle and commonly referred toas OAPI, the French acronym), evolved from the African and MalagasyIndustrial Property Office (AMIPO)52 that was established on September 13,1962 by the Libreville Agreement to uniformly protect and administer patents,trade marks and industrial designs in the majority of the former Frenchcolonies of Africa. The Bangui Agreement of March 2, 1977, which revised theLibreville Agreement, replaced AMIPO by OAPI and provided a legalframework for the protection of patents.The 1977 Bangui Agreement was rev ised in 1999 to comply with therequirements of the TRIPs Agreement. The revised agreement deals with theprotection of different elements of intellectualproperty, namely: patents,utility models, trade marks and service marks, industrial designs, tradenames, geographical indications, layout designs of integrated circuits, newplant varieties and literary and artistic works.Since OAPI opened its membership to non -French-speaking African countries,in addition to the francophone countries, Equatorial Guin ea and Guinea-

Bissau have joined the regional system. Currently, the organisation consistsof 16 Member States, namely: Benin, Burkina Faso, Cameroon, Central Africa,Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali,Mauritania, Niger, Senegal, Chad and Togo. 53 The organisation is operatingfrom a base in Yaound, Cameroon. Each of the Member States is party tothe Paris Industrial Property Convention, PCT and the WTO-TRIPsAgreement.The OAPI system is a regional patent system that implements a uniformpatent system. It provides for mechanisms for filing a single patentapplication and granting of patents in the name and on behalf of all Member


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States.54 Under this system, patent applicants secure patent protection in allOAPI Member States by filing a single application with OAPI or making a PCTapplication designating the OAPI. The patent granted by the organisation isconsidered as a national patent in each of the Member States . There arenational focal units in the Ministries of Industry of each of the Member States,which liaise with OAPI.The objectives of the organisation include providing support and adding valueto the technological development endeavour of member countrie s. OAPIencourages creativity and transfer of technology, provides with adequateprotection of patents and utility models, contributes to creating favourableconditions that support R & D endeavour and facilitates the exploitation oftechnological innovations by national enterprises.55The African Regional Intellectual Property Organization The African Regional Industrial Property Organization was established in1985, after the Lusaka Agreement was amended in order to open upmembership of the organisation to all African States that were members ofthe United Nations Economic Commission for Africa (UNECA) or theOrganization of the African Unity (OAU), 56 and to rename its predecessor theEnglish Speaking African Regional Industrial Property Organization

(ESARIPO)57

as the African Regional Industrial Property Organization. As thename indicates, ESARIPO was set up only for English -speaking Africancountries.The African Regional Industrial Property Organization was later changed tothe African Regional IntellectualProperty Organization (ARIPO) after adecision was made to broaden its mandate to include other elements ofintellectualproperty such as copyright.58ARIPO is located in Harare, Zimbabwe, and consists of 17 Member States:namely Botswana, the Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi,Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania,Uganda, Zambia and Zimbabwe. Mozamb ique, which is a Portuguese-speaking country, joined the organisation after the latter opened membershipto all African countries irrespective of language.

The main objectives of the organisation include: promotion of the harmonisation and development of intellectualpropertylaws, and matters related thereto, appropriate to the needs of its membersand of the region as whole;*Int. T.L.R. 147 fostering the establishment of a close relationshipbetween its members in matters relating to intellectualproperty; establishment of common services or organs as may be necessary ordesirable for the co-ordination, harmonisation and development of theintellectualproperty activities affecting its members; promotion and evolution of a common view and approac h of its members onintellectualproperty matters; and assisting its members, as appropriate, in the acquisition and development oftechnology relating to intellectualproperty matters.59 ARIPO administers the Harare Protocol, which was adopted in 1982 andentered in to force in 1984. The Protocol was revised in 1994 to link thesystem with the PCT, in 1999 to implement the obligations of the TRIPsAgreement and in 2001 to include utility models, as a tool for protectingminor inventions and innova tions that may not meet the stringentrequirements of patentability. The Protocol aims to streamline the filing andprocessing of patent and utility model applications, granting andadministering patent and utility model titles. The agreement provides


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centralised procedures including renewal, publication, amendments andrepresentation.ARIPO is empowered to receive and process patent and utility models, grantpatents and register utility models and industrial designs on behalf of itsMember States. At present all ARIPO Member States except Somalia are partyto the Harare Protocol and the Patent Cooperation Treaty (PCT).Under the present arrangement, an applicant for the grant of a patent or autility model may file a single application and designate any of the contractingstates, in which he/she seeks protection, using the ARIPO or the PCT route. AMember State has the right to accept or reject the title recommended to begranted60 by ARIPO within six months from the date of notification. Where noobjection is made by a Member State, ARIPO will grant a patent or a utilitymodel certificate, which has the same effect as a national patent or utilitymodel registration certificate in each designated state, and is governed by thelaws of each of those states.61Considering the importance of technological information in relation to nationalS & T capacity building efforts, ARIPO established a Patent Documentationand Information Centre (PIDOC), which provides members and potentialmember states with technological information available from patent and

patent-related documentation.East Africa CommunityThe Treaty Establishing the East African Community, to which Burundi,Kenya, Rwanda, Tanzania and Uganda belong, provides for harmonisation ofthe protection ofintellectualproperty. Initiatives to implement thiscommitment are already in place. There have been meetings between themember countries to harmonise IP laws. However, the process is stillongoing because the members have different deadlines to comply with theTRIPs regime.62The Pan-African Intellectual Property OrganizationThe proposal for the establishment of a Pan -African Organization onIntellectualProperty (PAIPO) was based on a concept paper whichdescribes the reasons for the establishment of the organisation and identifiesits goals and objectives.63The main reason for the establishment of the organisation lies in the need fora mechanism in the continent that will facilitate far reaching changes in thefield ofintellectualproperty, which cannot be effected through existingregional intellectualproperty arrangements that are currently underpinnedby geographical limitations and lack of continental inclusiveness. 64The goal of PAIPO is: to provide a broad-based platform for African Member States to benefitfrom a coordinated stock of specialized intellectualproperty knowledge andservices with a view to promote innovation, techno -industrialcompetitiveness, and economic growth in Africa.The organisation will have as its objectives to:

set IP standards that reflect the needs of Member States; set benchmarks for best practices on intellectualproperty; promote the growth of knowledge-based economies in Africa; facilitate the rationalisation and harmonisation of IP standards;*Int. T.L.R. 148 collect, process and disseminate relevant information onintellectualproperty to Member States; facilitate the utilisation of relevant IP information by Member States; and assist Member States in training and capacity building on a wide range of IPmatters.


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65 The above proposal was tabled at the Extraordinary Conference of theAfrican Union Council of Ministers on Science and Technology held inNovember 2006 in Cairo, Egypt. The Council accepted the proposal andrecommended its approval by the Assembly of Heads of State andGovernment of the African Union (AU). 66The African Heads of States and Governments summit held in Addis Ababa,Ethiopia, between January 29 and 30, 2007 took note of the proposal anddecided that: [T]he Chairperson of the Commission, in collaboration with the RegionalEconomic Communities (RECs), World IntellectualProperty Organization(WIPO) and in coordination with African IntellectualProperty Organization(AIPO) and African Regional IntellectualProperty Organization (ARIPO) tosubmit to it the texts relevant to the establishment of a single Pan -AfricanIntellectualProperty Organization (PAIPO).67Membership of international patent agreements and their impact onnational and regional patent systems in AfricaBackgroundThe international patent system evolved and developed to govern relationsbetween states and deal with the difficulties arising from the territoriality of

patents. The system includes international legal instruments as well asorganisations entrusted with the administration of these instruments. Theinternational patent legal regime consists of multilateral agreements, regionaltreaties and bilateral agreements. The international patent institutional oradministrative framework mainly involves organisations established toadminister the multilateral and regional patent agreements. These include theWorld IntellectualProperty Organization (WIPO), the World TradeOrganization (WTO), the European Patent Office (EPO), the AfricanIntellectualProperty Organization (OAPI) and the African RegionalIntellectualProperty Organization (ARIPO).The purpose of this article is not to deal with each of the constituentelements of the international patent system but to examine the rationalebehind the adoption of internat ional patent instruments, the membershipstatus of African countries and the impact of the international patent systemon African countries.The reasons behind the conclusion of international patent agreements lie inthe nature of inventions in the sense that inventions protected by patents donot know borders. However, patent protection is territorial in nature. As aresult, various difficulties that can defeat the purpose of patents and affectthe relations between states emerged. If an invention is not p rotected undernational law, it constitutes part of the public domain and can be freely usedin the country concerned. Seeking patent protection in a foreign country maybe difficult for a number of reasons such as possible discriminatory treatment,the variation between national laws, and the burden of cost, time anddistance related to the filing and processing of patent applications. In order to

avoid unwanted results that may arise in such circumstances and to mitigatethe difficulties in securing a pat ent in a foreign country, internationalagreements were concluded between and among sovereign states.In spite of the fact that international patent agreements try to harmonisenational patent systems by setting standards and common requirements,patents are still governed by national laws and where appropriate by regionalagreements.68 There is no international patent law that provides for a worldpatent. The international patent agreements are not meant to replacenational or regional patent systems, but facilitate the protection of the


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interests of nationals or residents of one member state in the jurisdiction ofanother Member State.There are a number of international patent agreements that deal withsubstantive, procedural and classification issues. These include the ParisIndustrial Property Convention (PIPC), the TRIPs Agreement, the PCT, thePatent Law Treaty (PLT), the Strasbourg Agreement and the BudapestTreaty. The first two agreements deal with substantive issues and setminimum legislative requirements. The PCT and PLT deal with proceduralaspects in relation to the filing and processing of patent applications. TheStrasbourg Agreement and the Budapest Treaty deal with patent classificationand the deposit of micro-organisms respectively.The discussion under the sections below is limited to PIPC, PCT and the TRIPsAgreement, to which a number of African countries are party, as shown inTable 1, and which can therefore be used as examples to show the impact ofthe international patent system on these African countries.*Int. T.L.R. 149 The Paris Industrial Property ConventionThe Paris Industrial Property Convention (PIPC), which was concluded in1883 and amended in 1900, 1911, 1925, 1934, 1956, 1967 and 1993, wasthe first multilateral agreement in the field of patents.

The Convention lays down the fundamental principles and common rules ofinternational patent protection. The basic principles and rules as stipulated inthe Convention include the principle of national treatment, the right of priorityand common rules such as on compulsory licensing. Some of theserequirements can have an impact on African countries. The principle ofnational treatment, which requires Member States to treat foreigners as theytreat their own nationals, for example, may not enable the countries to haveschemes that may distinguish foreigners from nationals in order to encoura gespecifically local inventive and innovative activities. These may include theinability to charge different patent application and maintenance fees, forexample.As at October 13, 2009, the convention had 173 member countries, of whichmore than one-quarter of the Member States were from Africa. 69 Some of the

African countries that are members of the convention have no national patentlaw that will help them to implement the agreement at the time of joining theagreement. Examples of such countries include Djibouti and Uganda. Djiboutiis a member of the Paris Industrial Property Convention but has no industrialpropertylaw yet.70 Uganda ratified the Paris Convention in 1965 but had notenacted domestic law to implement the agreement until 19 91.71Some writers argue that the Paris Convention, which was first signed andconcluded mainly by developed countries, reflected their techno -economicdevelopment conditions and interests, and is inappropriate to the level ofdevelopment and interest of the majority of developing countries. Theseauthors further argue that the convention is actually disadvantageous to theinterests of developing countries.In this regard, Juma and Ojuwang argued that:Developing countries, such as Kenya, which have acceded to the ParisConvention, have joined a regime of obligations that was not originallydesigned for their present condition. With the protection provided for by theConvention, the new states have in effect committed themselves to give aone-sided advantage to foreigners who operate from their land, as these havea much larger technological base than their own nationals. Under theseobligations the developing countries adhering to the Paris Convention haverestricted their own direction to make such policy or legislation, as they deembest to enhance local priorities regarding inventions and patenting. Since the


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commitments already assumed by these countries are binding and ought, inprinciple to be compiled with, the only respectable open course is f or thecountries to seek appropriate international negotiations leading toadjustments in the world regimes of patents. Indeed the developing countrieshave been calling for revisions in the Paris Conventions but no such changeshave been made.72On the other hand, however, there are writers who argue that the ParisConvention gives room to accommodate the needs and interests ofdeveloping countries regarding the requirements and standards for patents.The Convention is said to be weak compared to t he patent requirements andstandards in the developed economies. Moreover, it allows wide discretion tonational laws as far as compulsory licence, patentability and settingopposition procedures are concerned. 73Patent Cooperation TreatyThe Patent Cooperation Treaty (PCT) was concluded in 1970, amended in1979 and further modified in 1984. The PCT was adopted mainly to deal withthe problem of filing several applications in several countries within the p eriodof time prescribed by the Paris Industrial Property Convention and overcomethe duplication of effort by national patent offices. This is made possible by

streamlining pre-patent granting procedures and requirements such as filing,search and examination. PCT provides for filing a single application,performing international prior art search and international publication ofpatent applications. The Treaty also provides for international preliminaryexamination that is made optional to member countries .The Patent Cooperation Treaty does not grant patents, but facilitatesobtaining national patents in several countries. 74 The patent grantingprocedure under the PCT system consists of two phases: an internationalphase and a national phase. The international phase deals with a centralisedfiling and searching procedure and optional international preliminaryexamination. The national and, where appropriate, the regional phase isconcerned with the final patent granting procedure by the national andregional patent or industrial property offices. The filing of only one

international application has the same effect as if separate national orregional applications have been filed in all the countries which the applicantdesignates in his international application.*Int. T.L.R. 150 Membership of the Treaty, in particular by developingcountries, has increased in the 1990s mainly owing to the benefits the systemgives to applicants, the patent offices as well as countries. Nationals orresidents of Member States, among other things, have the opportunity to fileinternational applications with their national patent offices and receive aninternational prior art search report from an international searchingauthority75 to decide to continue or not with their application. This can saveconsiderable costs for the applicant. The availability of prior art search,international publication and examination facility would lessen the burden ofnational offices in developing countries, which often lack the requisite,qualified manpower, information and documentation as well as the financialresources that the tasks require. The PCT aims to assist the economicdevelopment of developing countries by providing easily accessibleinformation on the availability of technological solutions applicable to theirspecial needs as well as to build their capacity through the technicalassistance that may be obtained under the treaty. 76Agreement on Trade-related Aspects of Intellectual Property RightsThe Agreement on Trade -related Aspects ofIntellectualProperty Rights(TRIPs Agreement) that forms part of the WTO regime was signed on April


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15, 1994 in Marrakech, Morocco, and came in to effect on January 1, 1995. 77As at October 13, 2009, the WTO had 153 members of which 43 are Africancountries.78Prior to the TRIPs Agreement, intellectualproperty was not part of amultilateral trade agreement. The reason for the conclusion of the TRIPsAgreement may be explained on two grounds. First, there was the need toprovide a stronger IP protection to the bus iness communities of theindustrialised countries, which had been complaining that they suffered hugeeconomic loss as a result of piracy and counterfeiting. 79 Secondly, there wasthe need to overcome the shortcomings of the earlier IP conventions, w hichhad failed to provide effective means of enforcement of intellectualproperty rights. The TRIPs Agreement, unlike prior IP conventions, providedan effective dispute settlement mechanism. Countries failing to comply withthe TRIPs Agreement standards 80 can be subjected to trade retaliation if thedispute settlement mechanism of the WTO determines the existence of a caseof non-compliance with the Agreement.A lot has been written on the TRIPs Agreement. Some writers argued that theAgreement deprives states of the freedom to tailor their own patent regimeby setting minimum standards and stringent requirements which are lopsided

and operate more in favour of right holders. Others argue that the Agreementleaves developing countries some room in wh ich countries may adopt nationalpolicies that may cater for the public interest, the encouragement of foreigndirect investment (FDI) and transfer of technology as well as the stimulationof local innovation.81 It also gives due care to protect public interest and todeal with the problem of misuse or abuse of patent rights. 82Even though the implementation of the TRIPs Agreement standards tend topromote a great deal of uniformity in many areas of patent law, theAgreement does not seek to achieve (nor is its implementation likely toproduce) a global harmonisation of domestic patent laws. The TRIPsAgreement provides for flexibilities that may be exploited by MemberStates.83 However, these flexibilities are not fully being used by Africancountries. An example is that some of the LDCs of Africa amend their patent

law to accord patent protection for pharmaceutical products and processinventions even if they were not required to do so before 2016. 84*Int. T.L.R. 151 The implementation of the TRIPs Agreement, amongothers, involves the amendment of existing legislation, the adoption of newlaws, the strengthening of IPR administration and the building up ofenforcement capacity. These can entail a huge financial cost for African andother developing countries. In order to appreciate the problem linked to therequired reform, the estimated cost of compliance with the TRIPs Agreementin selected countries is taken from the 1996 UNCTAD study 85 as an exampleand shown in Table 2.

Table 2: UNCTAD case study

related to estimated costs forreform and capacity building inselected countries

Country Reforms needed Cost in US$


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Bangladesh Draft new laws,improve enforcement

$250,000 onetime plus $1.1million annually

Chile Draft new laws, trainstaff administeringIPR laws

$718,000 onetime plus$837,000annually

Egypt Train staffadministering IPRlaws

$1.8 million

India Modernise Patent

Office

$5.9 million

Tanzania Draft new laws,develop enforcementcapability

$1.0-1.5 million

It has been noted that the above estimates do not include training costs thatare high in developing countries, where adequately trained professionals areextremely scarce. Maskus underlines that the estimates indicated above mayactually be on the low side, since they were not prepared on the basis ofextensive studies using a standardised methodology. He has also noted that

there is a concern that the largest cost of implementing an effectiveadministrative system would be diversion of scarce professional and technicalresources into such administration from other productive activities. 86African countries should make effective use of the loopholes as well asopportunities to deal with the probl ems that they may encounter in theireffort to comply with the TRIPs Agreement. It has been posited that theflexibilities available in the TRIPs Agreement could be exploited in designingpatent legislation.87 In order to deal with the problem associated withadministrative cost and capacity building, developing countries may exploit anumber of avenues such as levying fees on administrative services as well asseeking technical assistance from developed countries. Developed countrieshave an obligation to provide technical and financial assistance to developingcountries to facilitate the implementation of the TRIPs Agreement. 88 Maskus

has underlined that developing countries may petition for technical andfinancial assistance from the industrialised countries and the multilateralorganisations such as WIPO and WTO.89 However, securing the necessaryassistance is not simple. Uganda and Sierra Leone, for example, hadidentified their need and tabled a request for technical assistance before theWTO. However, little assistance has been obtained by the countries to date. 90Joining regional patent systems and international patent agreements such asthe PCT has also been indicated as an alternative means to cope up with theadministrative burden developing countries may face while trying to comply


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with the requirements of the TRIPs Agreement. 91 Maskus, for example,suggests that developing countries might join the PCT, which providessignificant advantage.92 Examiners may read the opinions made by majorpatent offices about novelty and industrial applicability, rather thanundertaking technical examination by themselves. This would enable them toboth reduce costs and lessen the burden on the few trained patentexaminers, if any, of patent offices in developing countries*Int. T.L.R. 152 Bilateral and regional trade and investmentagreements and their impact on the national and regional patentsystemsBilateral and regional trade and investment agreements, which are known asfree trade agreements (FTAs) or trade and investment framework agreements(TIFA), have been used by developed countries such as the United States andEurope to ensure stronger protection of patents. 93 These agreements oftencontain an intellectualproperty chapter which adds IP obligations inaddition to those imposed by the TRIPs Agreement. 94 As a result theagreements have been characterised as TRIPs -plus.95 The agreements consistof instruments and mechanisms to administer and enforce intellectualproperty rights including patents.96

Some of the African countries have concluded or are in the process ofconcluding such agreements mainly with the United States and the EuropeanUnion. For example, Cameroon, Democratic Republic of Congo, Morocco,Mozambique, Republic of Congo and Senegal have entered in to bilateraltrade and investment agreements with the United States.97 A number of sub-Saharan African countries are negotiating an economic partnership agreementwith the EU, which will contain a chapter on intellectualproperty that mayerode the flexibilities available in past internat ional patent treaties such asthe TRIPs Agreement. The EU has concluded similar agreements with otherdeveloping countries that belong to the African, Caribbean and Pacific (ACP)group such as the CARIFORUM.98This article has been adapted from a study commissioned by the UnitedNations Economic Commission for Africa and presented at the second Sciencewith Africa Conference held June 23-25, 2010.Int. T.L.R. 2010, 16(5), 138-152

1.It is instructive to note that the exclusive rights conferred by patents are not absolute. Patentlaws define the scope and limitations of exclusive rights. The TRIPs Agreement, to which themajority of African countries belong, for example, defines the exclusive rights a patent confersand the limitations that may be imposed by national laws of Member States. See TRIPs arts 28,30 and 31.2.These include the use of a patented invention for non-commercial purposes such as scientificresearch and experimentation (which is known as research exemption) and the exploitation of apatented invention under compulsory or non-voluntary licence.3.G.S. Yankey, International Patents and Transfer of Technology to Less Developed Countries: thecase of Ghana and Nigeria (England: Avebury Gower Publishing Co Ltd, 1987), p.45.4.Patent laws, including the laws of African countries, often provide the right of an inventor to be

named in a patent document as an inventor of the invention even under circumstances such asservice inventions where patent ownership actually belongs to the employer. This right canonly be waived by the inventor in a special written declaration addressed to the Patent Office.As examples of African patent laws that require the naming of the inventor, see art.8, s.33 ands.11 of the 1995 Ethiopian Patent Law, the 2001 Kenyan Industrial Property Act and the 1992Ghanaian Patent Law, respectively.5.


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K. Idris, IntellectualProperty: A Power Tool for Economic Growth (World IntellectualProperty Organization (WIPO), 2003), p.84.6.M. Blakeney, Legal Aspects of the Transfer of Technology to Developing Countries (Oxford: ESCPublishing, 1989), p.85.7.Idris, IntellectualProperty, 2003, p.54.8.

Some patent laws require the applicant to indicate the best mode known to the applicant forcarrying out the invention in accordance with the conditions and requirements set by the law.An example is the 1992 Patent Law of Ghana (see s.27(2)).9.An invention may expire at the end of the patent term, which is 20 years in the majority ofcountries of the world. It may expire before the term if it is abandoned by the patentee or whenthe patentee fails to pay the annual maintenance fee.10.An invention may be exploited without the authorisation of a patentee under certain conditionssuch as issuance of compulsory licences prescribed by patent laws.11.The patent laws in a number of African countries such as Ethiopia, Kenya, and Ghana, forexample, provide that the exclusive rights of a patentee does not extend to the use of theinvention for the purpose of research and development such as scientific research andexperimentation (see art.25(1)(b) of the, 1995 Ethiopian Patent Law, s.58(1) of the 2001Kenyan Industrial Property Act and s.30 of the 1992 Patent Law of Ghana).

12.Idris, IntellectualProperty, 2003, p.92.13.Samson Vermont, Patent Costs and Benefits: The Economics of Patents and Litigation (Part II)(August 2001) Patent Strategy & Management5, quoted in Idris, IntellectualProperty, 2003,p.92.14.The information is not confined to the new technological information but also the prior art--thesum total of knowledge available prior to the date of application for a patent, and contains waysof putting it in practice.15.

Studies revealed that about two-thirds of the information contained in patent documents hasnever been published in any other form. An investigation made by the United States Patent andTrademark Office (USPTO) showed that as much as 70% of the technology disclosed in USpatent documents from 1967 to 1972 had not been disclosed in non patent literature. SeeWIPO, The importance of technological information contained in patent documents forinventors and industry (1999), WIPO Regional Seminar on the protection ofintellectualproperty and the commercialisation of inventions, WIPO/INV/ALP/99/7, p.8. Furthermore, theremaining one-third is made available in other sources, long after the information is disclosedand published in a patent document. For example, the information related to jet engine was firstpublished in a patent document in 1936 long before the same information was made available inother forms in 1946.16.Patent laws often require that a patent application disclose the information in a complete andadequate manner to enable a person skilled in the art to put to use the technologicalinformation with out the assistance of the inventor. Furthermore, the applicant has an obligationto identify and describe the best mode of using or applying the invention.17.Idris, IntellectualProperty, 2003, p.88.18.These countries are Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cote

d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal,Chad and Togo.19.These are Botswana, the Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique,Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.20.See http://www.wipo.int/about-ip/en/ipworldwide/pdf/er.pdf.21.See http://www.wipo.int/about-ip/en/ipworldwide/pdf/dj.pdf.22.See http://www.wipo.int/members/en/[Accessed August 9, 2010].23.


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For example, the patent system was first introduced in the former colony of Lagos and southernNigeria in 1900 by Patents Ordinance 17 of 1900 and Patents Proclamation Ordinance 27 of1900; northern Nigeria by Patents Proclamation Ordinance 12 of 1902; and in Ghana in 1899 byPatents Ordnance 1 of 1899. After the unification of Nigeria in 1914 the separate legislation forthe different regions were repealed and substituted by Patents Ordinance 30 of 1916, which wasamended in 1925 to become the Registration of United Kingdom Patents Ordinance 6 of 1925;Kent Nnadozie, An Assessment of the Status ofLaws, Research and Policy Analysis onIntellectualPropertyRights in Nigeria andGhana (2004), p.8.

24.Kenya and Ghana, for example, had their own independent patent laws in 1989 and 1992respectively. See the 1989 Kenyan Industrial Property Act Cap 509 and the 1992 GhanaianPatent Law.25.This colonial legacy is still visible with some of the elements of industrial property. Tanzaniaand Uganda. These countries, for example, currently re register industrial design titles grantedby UK. A Tanzanian and Ugandan will thus be forced to go to London and secure Britishregistration before applying for and obtaining protection for his design in his/her own country.26.International IntellectualProperty Institute (IIPI), Patent Protection and Access to HIV/AIDSPharmaceuticals in Sub-Saharan Africa , Report prepared for the World IntellectualPropertyOrganization (2000), p.42.27.Details of the operation of the regional patent systems are dealt with under later sections.28.

Yankey, International Patents and Transfer of Technology to Less Developed Countries, 1987,p.8.29.For example, the 1970 Act of Nigeria, which repealed the Registration of UK Patents Ordinanceof 1925, the Patents Rights (Limitation) Act 1968 and the UK Patents Acts 1949 insofar as it wasin force in Nigeria, was modelled on the draft law prepared in 1965 by the International Bureaufor the Protection ofIntellectualProperty (BIRPI), the predecessor of the World IntellectualProperty Organization (WIPO); see Nnadozie, An Assessment of the Status ofLaws, Researchand Policy Analysis onIntellectualPropertyRights in Nigeria and Ghana, 2004, p.8.30.Yankey, International Patents and Transfer of Technology to Less Developed Countries, 1987.

31.Nnadozie, An Assessment of the Status ofLaws, Research and Policy Analysis onIntellectualPropertyRights in Nigeria and Ghana, 2004, p.8.32.An example in this regard is the availability of utility model to protect minor inventions andinnovations. Prior to 2006 the countries that incorporated a utility model system to stimulatelocal inventive activity by according protection to minor inventions and innovations that may notmeet the stringent patentable requirements were Angola, Ethiopia, Kenya and OAPI. Seehttp://www.wipo.int/sme/en/ip_business/utility_models/where.htm [Accessed August 9, 2010].33.An example is the amendment of the Bangui agreement administered by OAPI in 1999 in orderfor Member States to comply with the requirements of TRIPs Agreement despite the fact thatthe countries were not required to do so before the expiry of the periods of transition availablein arts 65 and 66 of the Agreement. Such a period may further be extended, for example asregards to least developed countries (LDCs), on reasonable grounds within the meaning ofart.66(1). It is worth noting that 12 of the 16 Member States of OAPI are LDCs.34.An example is the 1993 National Science and Technology of Ethiopia, which identifies theestablishment of an efficient national patent system as a strategy to promote and support localtechnological innovations and creative achievements.

35.The Seychelles ICT policy, for example, identifies as one of the five areas that the policy willfocus on the creation of an enabling legal and regulatory environment including the enactmentoflaws addressing issues ofintellectualproperty.36.An example of a national development plan that recognises the importance ofintellectualproperty is the five-year development plan of Zambia. The Fifth National Development Plan,which ran from 2006 to 2010, has a chapter on science and technology under which issues ofintellectualproperty and research are covered.37.Rwanda and Zambia had issued national IP policies in May 2010, thereby making them pioneercountries in Africa. There are also a number countries that have draft national IP polices or


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initiated the drafting of IP policies. These include Kenya, Malawi, Mauritius, Uganda andTanzania.38.See G. Mengistie, IntellectualPropertyAssessment in Ethiopia (EIPO, 2006), pp.45-46.39.The first intellectualproperty audit conducted in Ethiopia revealed that higher learninginstitutions as well as research and development organisations covered in the study haveresearch results that can be protected by the existing intellectualproperty system but only

two inventions were protected using the existing patent system owing to lack of awareness andabsence of policy guidance on ownership of publicly funded research results. See Mengisite,IntellectualPropertyAssessment in Ethiopia, 2006, pp.56-58.40.The national IP assessment report cited in Mengisite, IntellectualPropertyAssessment inEthiopia, 2006, clearly showed that there is a serious problem of lack of awareness ofintellectualproperty by officials and staff of public research and academic institutions inEthiopia. Similar studies made in Kenya, Malawi and Zambia had also identified lack orinadequate awareness of IP as a challenge.41.Researchers and academics are promoted mainly on the basis of the frequency and quality ofpublishing in science and engineering journals. The higher the quality of the published researchresult, the better for the author--better exposure means better rewards. However, theopportunity for obtaining a patent can be lost by publication of the underlying research. Patentlaws consider those inventions which are published before filing an application for a patent tohave fallen in to the public domain. Research output that may have commercial value will thus

be lost as a result of failure to seek for protection before publication.42.Patricia Kameri-Mbote, IntellectualPropertyProtectionIn Africa: An Assessment of TheStatus ofLaws, Research and Policy Analysis onIntellectualPropertyRights in Kenya(International Environmental Law Centre, 2005), p.18.43.These include the MOI University in Kenya, University of Dar es Salam and Sukono University ofAgriculture in Tanzania.44.Examples of these include the Companies and IntellectualProperty Registration (CIPRO) ofSouth Africa, Business Registration and Licensing Agency (BRELA) of Tanzania, Patent and

Company Registration office (PACRO) of Zambia and the Registrar General's Office ofSeychelles.45.Such an office exclusively deals with patents. An example in Africa is the Egyptian PatentOffice.46.An example is the Kenyan Industrial Property Office, which administers in addition topatents/utility models, trade marks and designs.47.An example of such an office is the Ethiopian IntellectualProperty Office, which deals with allthe elements ofintellectualproperty including copyrights in a package.48.See M. Leesti and T. Pengelly, CIPR Study Paper 9 -- InstitutionalIssues for DevelopingCountries inIntellectualPropertyPolicymaking, Administration & Enforcement(2002); A.Zikonda CIPR, Country Case Study for CIPR Study 9, An Overview ofIntellectualPropertyPolicy, Administration and Enforcement in Selected African Countries (2002); Samuel Wangweet al., 2002, CIPR, Country Case Study for Study 9: Case Study on Institutional Capacity inIntellectualProperty Policy, Administration and Enforcement -- The Case of Tanzania;Samuel Wangwe et al., CIPR, Country Case Study for Study 9, Institutional Capacity inIntellectualProperty Policy, Administration and Enforcement -- The Case of Uganda (2002),

available at http://www.iprcommission.org [Accessed August 9, 2010].49.See Nnadozie, An Assessment of the sStatus ofLaws, Research and Policy Analysis onIntellectualPropertyRights in Nigeria andGhana, 2004, p.12.50.See, e.g., the case studies by A. Zikonda, An Overview ofIntellectualProperty Policy,Administration and Enforcement in Selected African Countries Enforcement -- The Case ofTanzania, 2002, and Samuel Wangwe et al., Institutional Capacity in IntellectualPropertyPolicy, Administration and Enforcement -- The Case Of Uganda, 2002.51.These include The Egyptian Patent Office (EGPO), Ethiopian IntellectualProperty Office(EIPO) and Kenya Industrial Property Institute (KIPIKenya Industrial Property Institute).


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52.The parties to the agreement were: Benin, Burkina Faso, Cameroon, Central African Republic,Chad, Cte d'Ivoire, Gabon, Mauritania, Madagascar, Niger, Republic of Congo and Senegal.Madagascar later withdrew its membership. This development coupled with the need to broadenthe scope ofintellectualproperty rights protected in the region resulted in the conclusion ofthe Bangui agreement that established OAPI.53.Please note that Equatorial Guinea and Guinea-Bissau are Portuguese-speaking countries, which

joined the organisation after the language requirement was lifted.54.See http://www.oapi.wipo.net[Accessed August 9, 2010].55.See http://www.oapi.wipo.net[Accessed August 9, 2010].56.See art.IV of the amended Lusaka Agreement which was enforced as of November 13, 2004.57.ESARIPO was created under the Lusaka Agreement in 1976. The Lusaka Agreement wasamended by the Administrative Council of ARIPO on December 10, 1982, December 12, 1986and November 27, 1996, and by the Council of Ministers on August 13, 2004.58.The Council of Ministers decided to broaden the mandate of the Organization to includecopyright and related rights at its Eighth Session held in Mangochi, Malawi, from August 29 to30, 2002. See also art.I of the Lusaka Agreement as amended and in force from November 13,2004.

59.See art.III of the Lusaka Agreement.60.See s.3(6) of the Harare Protocol. One of the grounds for rejection is inconformity with therequirements of the national law. Ghana, for example, had been rejecting patents until itrevised the patent law to conform to the TRIPs Agreement; see Phil Thorpe, 2002, CIPR, Studyon the Implementation of the TRIPS Agreement by Developing Countries (CIPR, 2002).61.Protocol s.3(7) and (12). Section 3(12) provides that A patent granted by the Office shall ineach designated State be subject to provisions of the applicable national law on compulsorylicenses, forfeiture or the use of patented inventions in the public interest .

62.See Arthur Mpeirwe, Legal, Policy andInstitutional Framework forIntellectualPropertyRightsinUganda: An assessment of the Capacity and Challenges for Research, policy formulation and

Implementation (African Centre for Technology Studies (ACTS), 2004), p.14.63.See Establishing a Pan-AfricanIntellectualPropertyOrganization (PAIPO) A Concept Paper,Document Number EXT/AU/EXP/ST/8(II), available athttp://www.google.com/search?hl=e n&source=hp&q=concept+paper+of+PAIPO&btnG=Google

+Search&aq=f&aqi=&aql=&oq= [Accessed August 9, 2010].64.The concept paper explains that the existing two regional organisations are managingintellectualproperty issues within two broad linguistic lines--English and French in 32countries out of a total of 53 Member States. The remaining 21 countries are not represented byany regional institution and rely on their own national IP arrangements to address IP matters.The establishment of a continental body will cater for all Member States.65.Establishing a Pan-African IntellectualProperty Organization (PAIPO), Concept Paper,Extraordinary Conference of the African Ministers of Council on Science and Technology(AMCOST), November 20-24, 2006, Cairo, Egypt, document No.EXT/AU/EXP/ST/8(II), availableat

http://www.google.com/search?hl=e n&source=hp&q=concept+paper+of+PAIPO&btnG=Google

+Search&aq=f&aqi=&aql=&oq= [Accessed August 9, 2010].66.See Cairo Declaration of the Extraordinary Conference of the African Ministerial Council onScience and Technology (AMCOST), November 23-24, 2006, Cairo, Egypt, documentNo.EXT/AU/EXP/ST/Decl/13(II)\REV.1, available at http://www.Africa-union.org [AccessedAugust 9, 2010].67.See Decision on the Establishment of the Pan-AfricanIntellectualPropertyOrganization(PAIPO), Assembly/AU/Dec.138 VIII, Assembly of the African Union Eighth Ordinary Session,January 29-30, 2007, Addis Ababa, Ethiopia, available at http://www.Africa-union.org [AccessedAugust 9, 2010].


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68.This is the case where patents are granted by regional organisation such as OAPI, which arevalid in Member States.69.http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=2 [Accessed August 9,2010].70.See http://www.wipo.int/about-ip/en/ipworldwide/pdf/dj.pdf.

71.Marion Motari, IntellectualPropertyProtection in Africa: An Assessment of the Status ofLaws, Research and Policy Analysis onIntellectualPropertyRights, A Synthesis Paper for

Five Selected Sub-Saharan Africa: Kenya, Uganda, Nigeria, Ghana and South Africa (ACTS,2004).72.Juma and Ojwang (eds.), Innovation and Sovereignty: The Patent Debate in AfricanDevelopment, African Centre for Technology Studies Research Series, No.2 (Nairobi: ACTSPress, 1989), pp.39-40.73.K. Maskus, IntellectualPropertyRights in the Global Economy(Washington, D.C., 2000),p.91.74.The PCT system is a patent filing system not a patent granting system giving an applicant anadvantage of a 30-month priority as opposed to the traditional 12-month priority. The decisionon granting a patent is taken exclusively by national or regional patent offices.

75.A national or regional patent office may be designated upon fulfilment of set requirements suchas available qualified manpower and documentation. In Africa, Egypt is the only country thathas a patent office designated as international searching authority and Internationalexamination authority under the PCT. Seehttp://www.egypo.gov.eg/inner/english/PDFs/Searchuthority_e.p df[Accessed August 9,2010].76.See the Preamble to the PCT and art.51(3)(a) and (b) for technical assistance that may be givento developing countries.77.

Please note that there were transition periods regarding the entry in to force of the agreementin developing and least developed countries. See art.65 of the TRIPs Agreement.78.See http://www.wto.org [Accessed August 9, 2010].79.It has been said that US business communities have estimated that world wide losses sufferedby US corporations owing to IP theft runs to the tune of around US$43 billion to US$61 billionper annum. See M. Blakeney, TRIPS: A Concise Guide to the TRIPS Agreement(1991); seealso M. McGrath, The Patent Provisions in TRIPS: Protecting Reasonable Remuneration forServices Rendered v. the Latest Development in Western Colonialism? [1996] E.I.P.R. ##?.80.The TRIPs Agreement, inter alia, aims to:1. harmonise intellectualproperty rights protectionby providing with the minimum standards that should be adopted by Member States;2. enhanceand broaden the scope of protection of patents by:(a) reducing the scope of various restrictionsand safeguards which used to be incorporated by national laws to protect the public interestand control abuse of a right by the patentee;(b) expanding the scope of duration of protectionby, for instance, requiring that patent protection shall be available in all fields of technology(art.27(1) and making the duration of a patent 20 years (art.33);(c) providing a mechanismthat ensures effective enforcement of rights; violation of IPRs and failure of member states toprovide with an effective enforcement of the same will entail severe consequences such as loss

of trade rights and imposition of sanctions.81.82.83.84.85.86.Reichmann, Universal Minimum Standards ofIntellectualProperty Protection under theTRIPS Component of the WTO Agreement (1995) 29(2) International Lawyer 345, cited byUNCTAD, in The TRIPS Agreement and Developing Countries (Geneva: 1996), p.32.87.UNCTAD, The TRIPS Agreement andDeveloping Countries, 1996, p.32.


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88.See Commission on IntellectualProperty Rights (CIPR), Integrating IntellectualPropertyRights andDevelopment Policy(London: 2002), and S. Mususngu and C. Oh, The Use ofFlexibilities in TRIPS by Developing Countries: Can they Promote Access to Medicines? (CIPRStudy 4, 2002), for the available policy space in the TRIPs Agreement that may be exploited indeveloping countries to cater for the interests of African countries.89.Examples of these countries are 12 countries that are members of OAPI, namely, Benin, Burkina

Faso, Central African Republic, Chad, Equatorial Guinea, Guinea, Guinea Bissau, Mali,Mauritania, Niger, Senegal and TOGO. The OAPI member countries protect pharmaceuticalinventions as a result of the Bangui Agreement administered by OAPI, which was amended tocomply with the TRIPs Agreement. For the list of LDCs that accord patents to pharmaceuticalinvention, see Phil Thorpe, Study on the Implementation of the TRIPs Agreement byDeveloping Countries (CIPR, Study Paper 7, ####). See also UNCTAD, The Least DevelopedCountries Report 2007 -- Knowledge, Technological Learning andInnovation for Development(2007); CIPR, Integrating IntellectualPropertyRights andDevelopment Policy, 2002;Musungu and Oh, The Use of Flexibilities in TRIPS by Developing Countries, 2002.90.UNCTAD, The Least Developed Countries Report 2007, pp.25-26.91.Maskus, IntellectualPropertyRights in the Global Economy, 2002, pp.173-174.92.See CIPR, Integrating IntellectualPropertyRights and Development Policy, 2002, pp.49,114-121; and Maskus, IntellectualPropertyRights in the Global Economy, 2002, pp.177-180.

It should here, however, be noted that there are countries in Africa that made effective use ofsuch flexibilities. An example is Zanzibar. The 2008 Industrial Property Act of Zanzibars.3(1)(x) excludes from patentability pharmaceutical products and processes until January 1,2016 or the expiry of such later period of extension that may be agreed upon by the WTOTRIPSCouncil based on good reasons.93.See TRIPs Agreement art.67.94.Maskus, IntellectualPropertyRights in the Global Economy, 2002, p.174.95.Uganda, for example, submitted a project proposal (UTIP) to WTO developed country members

and multilateral agencies in 2008. The project has four clusters namely:1. IP regulation(updating national IP policy, legal and regulatory framework);2. IP administration (modernisingIPR administration);3. IP enforcement (strengthening enforcement and related regulation ofIPRs);4. diffusion (using IP for business, innovation, creativity and technology transfer). So farUganda has received minimal technical and financial assistance to cover two activities underCluster 1: i.e. IP policy and regulatory framework research and analytical studies. Theseactivities, which were carried out in 2009, were funded by the European Union. There is a fearthat the country may not be in a position to fully comply with TRIPs Agreement when thetransitional period expires in 2013. (Information obtained from an official of the Ministry ofTrade, Industry and Tourism of Uganda on April 13, 2010 through personal communication.)96.97.98. 2010 Sweet & Maxwell and its Contributors

the patent system in africa (good notes for protecting patents and the situation of egyptian ip)

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