In this 72nd installment we canvass the African Regional Intellectual Property Organisation (Aripo)’s mandate on patent protection.
Intellectual Property Perspectives by Richard Pasipanodya
The Lusaka Agreement of December 1976 is merely the constitutive instrument establishing Aripo.
Besides creating the structural organs of Aripo and defining the organisation’s set objectives, it is devoid of any administrative instructions.
These administrative mandates are contained in subsequent instruments, the first of which is the Harare Protocol on Patents and Industrial Designs (Harare Protocol) which was adapted on December 10, 1982 at Harare, Zimbabwe.
The Harare Protocol empowers the Aripo Secretariat with the mandates to register and administer patents, utility models and industrial designs on behalf of the Aripo member states which are signatory to this instrument — so-called contracting states.
Its crafting was aimed at facilitating an approximated approach in the promotion of local innovativeness astride promoting the acquisition and transfer of appropriate technologies to member states. In this endeavour, the Harare Protocol is applied in parallel with the national laws of contracting states.
To date the Harare Protocol is the most subscribed of all the Aripo administrative instruments. It consists of 17 out of 18 Aripo member states, namely, Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
Filing and transmission
Depending on the domestic legislation of each member state, an application for registration of patents may be lodged indirectly with the national intellectual property (IP) office of member states or directly with Aripo.
Where the application is filed indirectly with the national office, that office has to ensure that it is transmitted to Aripo within one month from the date of filing. In which event the Aripo office will accord the application the filing date which was given to it by the national office. Where the application is instead filed directly with Aripo, the filing date to be accorded is one on which Aripo received the application.
National offices are obliged to undertake formal examination of all applications lodged with them before transmission to Aripo for substantive examination. Upon receipt of the transmitted documents Aripo may still subject same to further formal examination to ensure that all the requisite documentation has been satisfied. Where the application is filed directly with Aripo the secretariat then assumes the responsibility to undertake the formal examination.
Formal examination of the application entails verifying or checking whether or not the applicant is fully identified in the papers, the application contains the description of the invention, the claims, and where necessary, the illustrative drawings. Also checked is whether the application has designed the correct contracting states and whether the application is accompanied by the prescribed fees.
In either event it is the Aripo secretariat’s obligation to advise the applicant as lodged on whether or not the application lodged satisfies the formal requirements and where needs be to within prescribed periods of time invite them to comply with outstanding requirements.
Once the application has been accepted as meeting the prescribed formality requirements, the Aripo secretariat undertakes substantive examination of the application. By substantive examination here is meant assessment as to whether or not the invention as claimed meets the requirements of novelty, non-obviousness and industrial applicability.
This is adjudged against all existing matter or technologies the world over. In this pursuit the Aripo secretariat undertakes a search of the state-of-the- art existing in the world as at the time of filing. A search report is then compiled and forwarded to the applicant. It is for this reason that Aripo is globally acclaimed for producing world class quality patents.
Where the Aripo secretariat is of the opinion the invention as claimed meets substantial requirements for patentability it publishes or advertises the invention in the Patent Journal. It simultaneously notifies the national offices of the designated contracting states, to enable them to object where their domestic laws would not permit the patenting of certain claimed inventions. Publication affords other interested third parties to oppose the grant of patent over the inventions on given grounds.
Where opposition has been raised successfully, the applicant has an opportunity to convert their application into a utility model application for the designated contracting states. Where no opposition or objection has been raised the Aripo Secretariat will proceed to grant the patent. The grant of patent will have the full force and effect of patent granted in the national offices.
Education and training
Noting the acute lack of capacity within the rank and file of Aripo member states, the secretariat has concertedly introduced various training programmes to equip Aripo nationals with the requisite skills and competences to examine, administer and manage patent titles.
Apart from introducing post-graduate studies in IP Aripo has, in collaboration with WIPO and other strategic cooperating partners, introduced patent drafting and construction as well as technology transfer agreements. It also provides internship programmes for interested stakeholders, from students to industrial players.
Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775 053 007 or e-mail: email@example.com'