Guest article by Robert J. Sayre of Modern Times Legal.
Headquartered in Harare, Zimbabwe, the African Regional Intellectual Property Office (ARIPO) may be perceived by many practitioners through a shroud of mystery—admittedly, that was my view when I first visited four years ago for a patent-drafting workshop jointly sponsored by ARIPO and the World Intellectual Property Organization (WIPO). Having now visited Zimbabwe three times and met repeatedly with ARIPO officials and examiners, I hope to share some insights here that will shed some light on the nature of ARIPO patent practice.
WIPO-ARIPO 2009 workshop participants and ARIPO officials in front of ARIPO headquarters (Robert is front right)
Starting with a bit of background, 17 ARIPO member states (collectively home to more than 200 million people and many with much higher economic growth rates than those of developed countries) are subject to the Harare protocol, which empowers ARIPO to receive and process patent and industrial design applications on their behalf. Though as in Europe with the European Patent Office (EPO), there is no ARIPO patent with region-wide effect, rather ARIPO provides an avenue for issuance of national patents in the member states. ARIPO business is conducted in English, and English is a primary language for most, though not all, ARIPO member states. Similarly, many, though not all, ARIPO members were once British colonies, while many of the former French colonies belong to Organisation Africaine de la Propriété Intellectuelle (OAPI). My understanding is that patenting activity is much higher at ARIPO than at OAPI, particularly as ARIPO is consistently adding more members at the rate of about one or two new countries per year.
ARIPO Director General Gift Sibanda
Unlike the patent offices of many other developing countries and regions, ARIPO conducts substantive patent examination (actively evaluating novelty, inventive step and other substantive patentability requirements); and each ARIPO examiner (drawn from among the cream of the crop across ARIPO member states) that I have met has had solid technical training, a thorough understanding of patent law, a keen analytical mind, remarkable dedication, and a very personable demeanor. Assuming they could adjust to a much larger facility and organization, I do not doubt that ARIPO examiners would feel at home and fit right in at the United States Patent and Trademark Office (USPTO), European Patent Office (EPO) or other major patent office. One ARIPO patent examiner from a large east African state never ceases to astound me with his encyclopedic knowledge of patent history; and he seems to thoroughly know all of it forward and backward from 15th century Venice to present-day practice at the USPTO, EPO, and elsewhere. Curious as to how he amassed such a deep knowledge and understanding, I asked him where he studied, though he acknowledged that most of his knowledge of patent history and theory was derived from vociferous reading of patent literature.
Currently, about 95% of ARIPO patent applications are filed by applicants from non-ARIPO-member states. Perusing the ARIPO patent register, you will see, in particular, many patent applications filed by U.S. and European based pharmaceutical companies that are supplying a variety of essential drugs across the continent. Top ARIPO patent applicants found when searching ARIPO patent publications via WIPO’s Patentscope database include the following (some of which are related companies):
Pfizer, Inc. (117 ARIPO patents)
Smithkline Beecham, P.L.C. (66 ARIPO patents)
Pfizer Products, Inc. (64 ARIPO patents)
Glaxo Group, Limited (49 ARIPO patents)
Smithkline Beecham Corporation (41 ARIPO patents)
Rhone-Poulenc Agrochimie (41 ARIPO patents)
Janssen Pharmaceutica, N.V. (36 ARIPO patents)
The Wellcome Foundation Limited (29 ARIPO patents)
Societe des Produits Nestle, S.A. (28 ARIPO patents)
Aventis Pharma, S.A. (25 ARIPO patents)
One can readily expect, however, that as ARIPO member states develop economically, the proportion of applications filed by African applicants will rise steadily, as we have seen in China, for example, where most patent applications are now filed by Chinese applicants. Similarly, as we previously saw in China, it seems that not many African courts yet have a lot of experience with patent trials, though we can likewise expect that landscape to change substantially over the next twenty years of patent term for an application filed now.
A view of downtown Harare
Many African nations have at least a couple or a few strong technological universities and research institutions that are generating new technologies targeted to local needs and challenges, though a dearth of skilled patent agents across Africa had hampered the patenting activity of those institutions. Via annual patent-drafting workshops across Africa, however, we are working to gradually to build that capacity, as more and more workshop graduates find opportunities to begin drafting and filing patent applications in their home countries.
Registered ARIPO patent agents must be from ARIPO member states. At least a handful of patent law firms that make regular filings are located in Harare, and there are a variety of others across the other member states; some larger firms from non-ARIPO African states likewise have at least a small office in an ARIPO member state to enable them to file and practice before ARIPO. inovia can readily connect you with an experienced ARIPO agent [Spoor & Fisher] whom they most trust. And if you file at ARIPO and happen to have a chance to accompany your agent for an examination at ARIPO, I heartily recommend you go, as I expect that you will be surprised at the level of sophistication at ARIPO notwithstanding its comparatively small and dare I say “quaint” facility and at the welcoming spirit of Zimbabweans no matter the economic circumstance at any particular time; and the country hosts some superb wildlife (I particularly recommend the Lion Park about 15 miles outside Harare if you are limited to a short visit).
Lions outside Harare
As for substantive patent law at ARIPO, the law and practice most closely resembles European Patent law (particularly in terms of evaluating inventive step by the problem-solution approach, for example), though ARIPO does have a best-mode requirement (like the US). Additionally patent applications allowed by ARIPO may be declined by national patent offices if, for example, it pertains to subject matter excluded from patent eligibility by national law (e.g., in the realm of biological organisms). Zimbabwe scrapped its currency a couple years ago (thankfully, you no longer have to venture around Harare with a suitcase full of Zim multi-trillion dollar notes to pay for dinner) and opted for U.S. dollars as its accepted currency, so there should now be no added challenges with official payments or currency conversions.
A Zim 100 trillion dollar note
For a survey of economic opportunities across African markets (including ARIPO member states), see “A New Gold Rush” in the Wall Street Journal (January 2011) or the special report entitled, “Cracking the Next Growth Market: Africa,” published by Harvard Business Review. As sub-Saharan African markets continue to expand, ARIPO is destined to play a more prominent role within the global patent landscape.
Photos courtesy of Robert Sayre.
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