Patents in Africa

A patent is an instrument that gives an owner an exclusive or monopoly right over an invention, which is a product or a process that provides a new way of doing something or offers a new technical solution to a problem.

The patent allows the owner to exclude others from, among other things, making, using, exercising, disposing of, offering to dispose of, or importing the invention.

An invention can take a number of forms, including a process, a method, a machine, a device, a new material, a chemical compound or chemical composition. The precise requirements for patentability depend on the law of the country concerned. Generally speaking, to be eligible for patent protection, an invention must:

be new, in that it is not previously known anywhere in the world (novel);

not be an obvious variation on known technology (inventive); and

be capable of being applied in trade, industry or agriculture (useful).

If your invention meets these criteria, it’s likely to be patentable in most countries.

Searches are conducted to determine if an invention is novel and inventive. The aim of the search is to identify what is referred to as “prior art”, which is technology or similar products/services that are already known. Identifying this prior art is a critical step in determining whether an invention is patentable and whether meaningful patent protection can be secured for the invention.

These searches can be conducted using a number of different sources:

the inventor’s knowledge in the field of the invention;

the internet;

keyword searches through the online records of Patent Offices;

keyword searches through the paper-based records of Patent Offices; and

technical literature.

These different types of searches vary in complexity, reliability and cost.

Once an invention has come into being, you’ll need to decide whether or not to protect it with a patent. There’s always an option not to file a patent application and to protect the invention by keeping it a secret, and this may be an appropriate strategy to follow in certain circumstances.

But this can only be done where the confidentiality of the invention can be preserved and the invention does not become self-evident from the product/service that is sold or used commercially. Also, if a competitor independently develops the same invention, you would have no mechanism to prevent him from dealing in that invention.

Even if you decide to file a patent application, it’s important to keep the invention confidential, at least until the first patent application has been filed.

This is because any prior non-confidential disclosure of the invention (even your own use or disclosure) may destroy the novelty of your invention.

All forms of non-confidential disclosure must be avoided, including the sale of products/services embodying the invention, the implementation of the invention for any purpose other than reasonable technical trial, the publication of articles about the invention, or the disclosing of the invention in communications to prospective customers and commercial partners.

Once the patent application has been filed, you can disclose the invention to others without prejudicing its novelty.