Filing Patents in Africa
In this special Park IP Translations guest blog, Nicky Garnett and Wilhelm Prozesky from leading African law firm, Adams & Adams Attorneys, talk about growth and innovation in Africa and share expert advice on how to best approach patent filing in Africa.
The International Monetary Fund (IMF) forecasts that Africa will be the second-fastest growing region in the world between 2016 and 2020 with annual growth of 4.3% and West African nations’ GDP expected to grow by 8.5% in 2016. Compared with much of the developed world, economic growth is relatively high in Africa. Although many African countries report high levels of poverty and unemployment, many of Africa’s 54 countries are experiencing economic growth, which drives a need for patent protection and clearer understanding of patent application systems and processes.
There is a tendency for people to think of Africa as one territory, yet each of Africa’s 54 countries have their own unique challenges, dynamic opportunities, jurisdictions and economic infrastructures. Sometimes referred to as the “dark continent,” many people’s perception of Africa is still heavily influenced by emotive media images showing high levels of poverty, famine and poor health and therefore, do not see Africa as a continent of opportunity.
Stories of political unrest and corruption also influence business decisions. There is still uncertainty and apprehension when organizations and individuals look to seek protection of patents and intellectual property in Africa. Some African patent laws are not clearly defined, which causes concern and raises risk issues. This can also create uncertainty as to the time taken and monetary charges made by the individual patent offices. This is why it is essential to seek quality representation with a law firm who has extensive experience and knowledge at working within the legal system of each African country and one who has partnered with a legal language service provider, like Park IP Translations, who can provide professional and accurate translations for foreign patent applications.
One of the main challenges when filing patent applications within some African jurisdictions is the examination part of the patent application process. Quite often, this part of the patent application process just does not exist for many African patent offices. Search and examination of patent applications to establish prior art and whether the patent meets the local patent laws, requires considerable specialist resources and these resources are often not available. As a result, a patent application can be granted and still result in a weak patent, which is open to future infringements.
Some applicants can see short-term benefits in an undefined patent application process. No examination means patents may be granted quickly at a relatively low cost; however, the long-term implications of a weak patent can be disastrous and expensive. Further down the line you could be stung with an infringement that requires defending in court. In South Africa and other more developed African economies, like Nigeria for example, patent offices conduct examination and applications can proceed to grant in a relatively short time. The patent office in South Africa is planning to hire and train patent examiners and is drafting a policy to outline examination practices, which are due to be implemented in 2018.
One of the practices Adams recommends to their clients filing in African countries where no examination is conducted, is to try to delay acceptance to wait for the outcome of examination of corresponding applications in other jurisdictions, where examination does take place. This way, irregularities can be resolved before patent applications are filed and ultimately granted. Applicants must also remember that it is not the job of the patent office to write and vet an application. This responsibility lies with local counsel which makes it so important to have the right legal representative dealing with patents to ensure they can be enforced.
A lot of economic growth in Africa is due to the high levels of technological innovation and this has seen an increase in patent applications in certain African territories. Many African’s went from moderate use of desktop computers to wide adoption of smart phones and millennials may well never use a desktop. According to the World Economic Forum, penetration of smart phones is expected to hit at least the 50% mark in 2020 from only 2% in 2010. With the population of Africa at 1.216 billion in 2015, that’s a lot of smart phone users requiring a strong telecommunications infrastructure.
We have seen increased patent activity especially in mining and telecommunications. Many Africans may not have access to a reliable public transport system or water system; however, they can make a phone call and access the Internet. For some of the more obscure territories in Africa, there is no great economic gain to be had by the telecommunications providers but in some African countries, there are many opportunities for hardware and software providers and this generates more demands for patent applications.
For any global organization looking to use new innovations or inventions within Africa, whether mining, telecommunications or banking, it is critical to have legal knowledge and experience within each jurisdiction.
Our final word of advice for anyone looking to seek IP and patent protection within any African territory, good representation is essential.
Nicky Garnett is the Head of the African Patent Department at Adams & Adams in Pretoria, South Africa.
Wilhelm Prozesky is a patent attorney and a partner in the Patent Department of Adams & Adams in Pretoria, South Africa.
Adams & Adams is an internationally recognized leading African law firm specializing in intellectual property and commercial services.