SUBSTANTIVE EXAMINATION OF PATENTS IN AFRICA’S SEARCH FOR TECHNOLOGICAL ADVANCEMENT- BUILDING REGIONAL HUBS AROUND AFRICA'S REGIONAL INTELLECTUAL PROPERTY COMMUNITIES (RIPC)

SUBSTANTIVE EXAMINATION OF PATENTS IN AFRICA’S SEARCH FOR TECHNOLOGICAL ADVANCEMENT- BUILDING REGIONAL HUBS AROUND AFRICA'S REGIONAL INTELLECTUAL PROPERTY COMMUNITIES (RIPC)

ES Nwauche (Prof)

It is disheartening to note that no African country substantively examines patent applications to ensure that they are new, involve an inventive step, and are capable of industrial application. In ALL African patent registries, patents are registered on the satisfaction of formal requirements, including paying relevant fees and correctly filled forms.

Substantive examination of patent applications ensures that the limited monopoly granted to patent owners, usually for 20 years, is not a tactic to cover the market and stifle competition. Where there is no examination, only the patent applicant truly understands the breadth of the application, which is usually as wide as possible, including all processes in the value chain of a good or service. One good way to understand how Africa's examination as to form is inimical to its technological growth is to compare patents filed in the African States and other developing states that substantively examine their patent applications. Furthermore, when these patents expire after 20 years, the holders reapply with the same parameters and extend the protection for their goods and service in markets where the ideas behind their patents are no longer new nor show any incremental step beyond what is in the market.

African governments are aware of the importance of substantive examination. For example, in its 2018 Intellectual Property Policy, the South African government pledged to reform its patent registry to ensure substantive examination of patents. Nigeria, Kenya, and Ghana have also made public statements. It cannot, therefore, be a lack of awareness. It may be a need for more conviction of the patent system's importance to technological advancement or the cost of reforming the registries to ensure substantive examination.

Africa's pharmaceutical industry appears on the cusp of substantial growth with the mRNA Vaccine Hub in Cape Town and the national certification status of regulatory institutions in Nigeria, South Africa, Ghana, Kenya, and Egypt. The prospects of locally manufactured vaccines for Africa's neglected diseases are threatened by patents in African registries designed to ensure that these locally manufactured medicines do not enter the market. The chilling effect on the potential competition of these 'wild' patents in the African intellectual property landscape is akin to serial self-administered harm. Even with the capacity to compulsorily license lifesaving drugs, African States are content to articulate a framework that multinational pharmaceutical firms are used to in other jurisdictions and therefore have yet to yield any tangible result.

Perhaps it is to Africa's Regional Intellectual Property Communities (RIPC) that we should turn to and urge them to build regional hubs for substantive examination to reduce the self-administered harm of examination as to form. The African Regional Intellectual Property Organisation (ARIPO) and the African Intellectual Property Organisation (OAPI) are regional intellectual property organisations best suited to host regional patent examination hubs.