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Africa

Africa is the continent with the least patents in the world, accounting for 0.4% of global patent granted in 2020.[1] Despite this statistic, Africa is a growing economy and is expected to have many more patents in the future.

It is important to closely observe developing economies because undeveloped patent systems are more likely to present opportunities to introduce laws on banning software patents. It has also been argued that the concept of patents may be incompatible with African business models.[2]

Almost all African patent systems are influenced by the West, since, historically, many patent laws and cooperation agreements are associated with the former colonial status of Africa. When first adopted, the goal behind most African patent laws was to comply with international agreements and establish an independent national patent system, without necessarily having clear policy direction or the needed infrastructure to support such a system.[3]:10–2

Overview

African countries are divided in the following categories:[3]:8

  1. no national patent system but belong to a single regional patent system, which has automatic application in their territories (OAPI);
  2. national patent systems and belong to a regional grouping (ARIPO);
  3. national patent systems and are not parry to a regional patent system, and
  4. no national patent system and do not belong to any regional patent cooperation arrangements.

While most African states have TRIPS-compliant legislations, it has been observed that, "across the continent, there tends to be a gap between national statutory provisions on patents and the actual practices in patent offices".[4]

Open AIR, an African research center that studies patents in Africa among other fields, has commented on this issue:[5]

Extensive research, including a survey of patent offices in 44 African countries, reveals that African states are “dumping grounds” for patents, with little or no examination of applications or public access to invention disclosures or other documents. [...]

Granting more patents will not solve this problem; and may exacerbate it. This lesson has already been learned in other regions of the world, where the proliferation of "junk" patents risks clogging up innovation systems and stifling entrepreneurship. Africa has a real chance now to avoid the mistakes others have made, and to strike the right balance in respect of patent protection that serves Africa’s interests. In the context of publicly funded research, some African countries are setting up bureaucracies to chase IP rights. Instead, they would do well tapping into the tremendous power of open science, open data, and open innovation. [...]

The nations of Africa should resist any temptation to use the opportunity of CFTA for patent reform to expand the subject-matter, scope, or duration of patent protection. "Strengthening" patent protection on the continent of Africa requires better patents, not more patents. Africa's focus should be on quality, not quantity. This means stricter scrutiny by highly qualified patent examiners, carefully assessing every application to ensure it meets the highest standards of novelty, inventiveness, and industrial applicability. Particular emphasis must be placed upon the dissemination of patent-related information, so that the technologies which are disclosed by African and non-African applicants can be used effectively following expiration of the limited monopoly period patent law provides.

References

  1. World Intellectual Property Organization, World Intellectual Property Indicators 2021, WIPO, 2021, p. 31.
  2. Rutenberg Isaac, Faking it: time to rethink intellectual property in developing countries?[archived], theguardian.com, 2013-29-10.
  3. 3.0 3.1 Mengistie Getachew, Its Contribution and Potential in Stimulating Innovation, Technology Transfer and Fostering Science and Technology, United Nations Economic Commission for Africa (UNECA), 2010.
  4. Mgbeoji Ikechi, "African Patent Offices Not Fit for Purpose" in Innovation and Intellectual Property: Collaborative Dynamics in Africa (ed. De Beer Jeremy et al.), UCT Press, 2014, p. 241.
  5. Ncube Caroline et al., Intellectual Property Rights and Innovation: Assessing Regional Integration in Africa (ARIA VIII), 2017-05-05, pp. 19–21.