Patent registration is becoming increasingly standardised through international treaties and systems. Yet Africa still retains some historical patent anomalies. Some of these present interesting opportunities.
Patents of introduction – Ethiopia
Ethiopia still recognises patents of introduction. Section 5 of the Ethiopian patent legislation says that "a Patent of Introduction may be issued to an invention which has been patented abroad and not expired but has not been patented in Ethiopia".
The legislation goes on to say that that a patent of introduction will be considered null and void if the owner of the foreign patent files a corresponding patent of invention application within the one-year priority term (Ethiopia recognises priority even though it is not a member of the Paris Union), or if the owner fails to work the invention. The patent will be valid for a period that "may extend up to ten years".
Patents of importation – Democratic Republic of Congo (DRC)
The DRC allows for patents of importation. The relevant legislation describes a patent of importation as an "invention for which, on the filing or priority date therefor, its holder has already acquired an Invention Patent in a foreign country". As for duration, the law say that patents of importation "shall terminate at the same time as the main patent to which they are attached".
EP patent validations – Morocco
Morocco has concluded a validation agreement with the European Patent Office (EPO), and since March 1 2015 it has been possible to designate Morocco in a European patent application. However, the agreement does not mean that Morocco is a contracting state of the EPC.
Proposed EP patent validations – Tunisia
Tunisia has also signed a validation agreement with the EPO, but this agreement still needs to be ratified by the legislature.
Automatic extension of UK patents and voluntary registration of South Africa patents – Swaziland
UK and European (UK) patents are considered to extend to Swaziland automatically without the need for re-registration. Re-registration of South African patents is also an option.
Voluntary registration of UK patents – St Helena
The only way to get patent protection in St Helena is through the registration of UK patents or European patents that designate the UK – registration can be sought within a period of three years from the date of issue of the UK or European (UK) patent.
Patents of introduction and Patents of importation create opportunities for owners of foreign patents to get protection for their patents in economically significant countries well outside of the usual deadlines. EP validation, on the other hand, allows patent owners to incorporate certain African states into the European patent application process, whereas the procedures in Swaziland and St Helena place holders of UK and South African patents in an advantageous position.
Margaret Le Galle
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