Ghana: patents in Africa – your questions answered
As Africa’s economic significance grows, so does the need for patent protection in the continent. Africa is sometimes seen as being challenging, partly because of the co-existence of national and regional registration systems. We will therefore be producing a series of country or region-specific patent law updates. This is the first in that series, and it deals with Ghana.
With a population of 28 million, a GDP of US$42billion, and a relatively sophisticated economy that comprises, inter alia, automotive and ship construction, the manufacture and export of digital technology goods and the export of minerals, Ghana is an important market. As for patent law, there is a relatively recent statute, the Patents Act, 657 of 2003. The country is a member of the Paris Convention, the World Intellectual Property Organisation (WIPO), the African Regional Intellectual Property Organisation (ARIPO), and the Patent Convention Treaty (PCT).
Inventors, joint inventors and successors-in-title can file patent applications, and Ghana has a first-to-file system. Inventions made by employees in the course of their employment belong to the employer, although the employee may be entitled to equitable remuneration where the economic value of the invention is much greater than might have been foreseen.
Patents of invention can be registered. An invention is an idea that permits in practice the solution to a specific problem in the field of technology, and it may be, or may relate to, a product or process. To be patentable an invention must be new, involve an inventive step, and be industrially applicable. An invention will involve an inventive step if, having regard to the prior art, it would not have been obvious to a person skilled in the art. The usual exclusions apply, including diagnostic, therapeutic and surgical methods for the treatment of humans and animals (although not products for use in such methods).
Absolute (worldwide) novelty is required. Novelty is not destroyed if the disclosure occurred within 12 months of the filing of the application or the priority date, and if it resulted from an act committed by the owner or a predecessor in title, or an abuse committed by a third party with regard to the applicant or a predecessor.
The patentee has the right to stop others from doing the following: making, importing, offering for sale, selling or using the patented product; stocking the product for the purpose of sale; and using the patented process. Acts done for experimental purposes are excluded from the owner’s exclusive rights and there is provision for prior user rights. In legal proceedings the patentee can be granted an injunction, damages, or any other appropriate remedy. A licensee who has requested the patentee to sue for infringement can sue in its own name if the patentee fails to do so.
There are specific procedural requirements for non-PCT patents of invention and national phase PCT applications. When it comes to ARIPO and ARIPO Regional Phase PCT applications, the ARIPO procedures must be followed. There is formal examination and the Registry can request copies of foreign searches, examinations or decisions. There is no procedure for opposition, but there is provision for cancellation (revocation).
A patent lasts for 20 years from the filing date and renewal fees are due annually from the first anniversary of the filing date. Compulsory licensing can be granted by a court after the expiry of four years from the filing date or three years from grant (whichever is the later) on the basis that the patented invention is not being exploited or is insufficiently exploited in Ghana.
In Ghana there is protection for utility models and lay-out designs of integrated circuits (topographies).