Patent and Design Law Developments in Africa
Angola recently approved its adhesion to the Paris Convention and PCT. This resolution was advertised in the Angola official gazette of 6 June 2003. However the date on which it will become a signatory to the Paris Convention or become bound by the Patent Cooperation Treaty (PCT) has not yet been set.
Botswana was the 122nd PCT contracting state and became bound by the PCT on 30 October 2003. Consequently, it will be possible to obtain patent protection in Botswana based on an International PCT patent application designating Botswana, provided that the international application is filed on or after 30 October 2003. The protection may be obtained by filing directly in Botswana or via the ARIPO regional phase of that PCT application.
Egypt was the 121st PCT contracting state and became bound by the PCT on 6 September 2003. Consequently, it will be possible to obtain patent protection in Egypt based on an International PCT patent application designating Egypt, provided that the international application is filed on or after 6 September 2003.
The Patents, Industrial Designs and Trademarks Act, No. 25/2002, came into force on 6 January 2003. The significant changes in the field of patents and designs are summarised below:
In terms of the repealed Patents Act only local novelty was required. The new Act requires absolute novelty. However, novelty will not be destroyed if the disclosure of the invention to the public occurred not earlier than twelve months preceding the filing date or where applicable the priority date, and it was as a consequence of:
- acts committed by the applicant or his predecessor in title, or
- an abuse committed by a third party with regard to the applicant or his predecessor in title.
Diagnostic, therapeutic and surgical methods for the treatment of humans and animals are not patentable. However products for use in any such methods may be patented.
Plants, plant varieties, animals and essentially biological processes for the production of plants or animals are not patentable. No exception is made for micro-biological processes or the products of such processes; they will therefore not be patentable.
It will now be possible to claim priority under the Paris Convention. The repealed Act did not permit this even though Mauritius has been a member of the Convention since 1976.
The duration of a patent will be twenty years from the filing date. The repealed Act provided for a duration of fourteen years, extendable for a further period of up to fourteen years. The term of a patent granted under the repealed Patents Act will be fourteen years, unless the patent has been extended, in which case the patent will remain in force for the unexpired portion of the period for which it was extended. Pending patent applications filed under the repealed Patents Act will be processed in accordance with the new Act.
Renewal fees will be payable from first anniversary of filing date. Renewal fees will also become payable on existing patents, which were not previously subject to annuities.
Provision is made for the Patent Cooperation Treaty, although Mauritius is not yet a member.
The repealed legislation made no provisions for registering a design in Mauritius. Registration of a design in the United Kingdom automatically extends to Mauritius. The provisions in the new Act for the registration of an industrial design are reviewed below.
An industrial design is defined as any composition of lines or colours or any three-dimensional form, or any material, whether or not associated with the lines or colours, provided that such composition, form or material:
- gives a special appearance to a product of industry or handicraft;
- can serve as a pattern for a product of industry or handicraft; and
- appeals to and is judged by the eye
Absolute novelty is required. The term of an industrial design will be 5 years from the filing date, with the option of renewing the industrial design for three further consecutive periods of 5 years.
Namibia is the 123rd Patent Cooperation Treaty (PCT) contracting state and will become bound by the PCT on 1 January 2004. Consequently, it will be possible to obtain patent protection in Namibia based on an International patent application designating Namibia, provided that the International application was filed on or after 1 January 2004. Namibia will also become a signatory to the Paris Convention in the near future, the effective date is not yet clear.
Namibia has issued a draft Bill for the registration and protection of patents, industrial design, utility models and trade marks. The proposed legislation will bring Namibia´s Intellectual Property (IP) law into line with modern IP law. The draft Bill is currently under review and will hopefully be enacted in 2004.
A Patent Amendment Bill of 2002 was enacted on 30 December 2002.
The existing Act was amended to include the so-called Bolar provision. The amendment allows for the making, using, exercising, disposing or importing of a patented product on a non-commercial scale (where the patent is still in force), solely for the purposes reasonably related to the obtaining, development and submission of information required under any law of South Africa that regulates the manufacture, production, distribution, use or sale of the product.
In the Patents Act before amendment, the requirements for a complete patent specification were firstly that it had to fully describe, ascertain and, where necessary, illustrate or exemplify the invention and the manner in which it was to be performed, and secondly that it had to disclose the best method of performing the invention known to the applicant at the time when the specification was lodged at the Patent Office. This section has been amended so that now a complete patent specification must sufficiently describe, ascertain and where necessary, illustrate or exemplify the invention and the manner in which it is to be performed in order to enable the invention to be performed by a person skilled in the art of such invention. The requirement for disclosure of "the best method" has been removed.
The South African Patent Regulations were amended on 23 April 2003 to provide that the Chapter I deadline for entering the National Phase in South Africa is 31 months from the earliest priority date of the corresponding International Patent Application. This brings our regulations into line with the amendment of PCT Article 22. It is also possible to extend the deadline for entering the National Phase in South Africa for a period not exceeding 3 months. Thus, for pending International Patent Applications, the Chapter I and Chapter II deadlines are now both 31 months from the earliest priority date, extendable to 34 months.
Spoor & Fisher