“Perhaps a patent in Africa simply does not mean the same as a patent somewhere else. On the face of it, this might sound like a good thing: if there is no real functioning patent system, IPR will not cause problems. On second thought, the idea is not so good after all, because it results in a random system.”
While looking into the Plumpy’Nut case (see Part 4 and web page), I came to realize that I have almost no idea whether flaws in the African patent system are playing a role. There is very little information readily available even on the Internet, and whether that information is reliable is anyone’s guess. I will have to start from first principles, and dig up what I can. So far, the information is puzzling. Africa does have a patent system on paper; but whether that system actually works is a separate question altogether.
What does the bureaucratic system look like?
WIPO is the United Nations agency whose “mission is to promote innovation and creativity for the economic, social and cultural development of all countries, through a balanced and effective international intellectual property system.” A total of 184 nations are members of WIPO, with only a few tiny Pacific island nations missing. It is basically a negotiating body.
At the operational level, most countries have signed the Patent Cooperation Treaty (PCT,Wikipedia page). In principle, only one PCT application needs to be filed, and assigned to a variety of countries. Since a PCT application can be expensive, it is quite common to file in just one country, for example the USA. However, there is no “international patent”; certain search functions are performed within the PCT system, and an international search report and opinion on patentability is made. However,the final decision on whether to grant the patent is always left to each country, and they may or may not use the results of the international search report to make their decisions.
There are regional bodies, such as the European Patent Office (EPO) for much of Europe. For Africa, there are two regional bodies. OAPI (Wikipedia page) is the regional body for 16 French-speaking African countries (Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Cote d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, and Togo)
ARIPO (Wikipedia page) is the regional body for 18 countries in English-speaking Africa (Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Uganda, Tanzania, Zambia, Zimbabwe), with 12 other African countries as observers (Algeria, Angola, Burundi, Egypt, Eritrea, Ethiopia, Libya, Mauritius, Nigeria, Seychelles, South Africa, and Tunisia).
Information on the ARIPO is more readily available. According to a WIPO presentation, the ARIPO is authorized to grant patents on behalf of the member states, i.e. only one filing is needed to get a valid patent in all 18 countries. It is not entirely clear whether the ARIPO does the examination itself, or whether it relies on examinations done by the EPO. Any individual country can still refuse to grant the patent, however.
What does the African patent system look like on paper?
A useful hint is given by an interesting article in the Patentology blog, which analyzed the system in Ecuador. The WIPO country profile (utilized by the Patentology blog) allows some estimates. The simplest parameters are to look at are the number of patents in force, and the number of patent applications filed in the last year of data collection (usually 2010).
As a baseline, the US has over 2 million patents in force and 500,000 filed in 2010. China 560,000 in force and 300,000 applications in 2012; Russia 182,000 and 44,000. The UK’s figures are 420,000 and 27,000; Finland 12,000 and 3,500; Norway 12,000 and 2,300 (European countries are however increasingly tied to EU-level patents, so the figures are not directly comparable). Among developing countries, Brazil 42,000 and 3,200; India 37,000 and 6,100; Thailand 10,000 and 760.
Among African non-ARIPO nations, South Africa 6,500 and 6,300; Egypt 3,300 and 2,200; Nigeria has none according to the WIPO statistics.
The last figures in the WIPO database for the ARIPO countries are for 2008. Patents in force and new patents filed:
Botswana 444 0
Gambia 991 0
Ghana 1,018 0
Kenya 1,305 197
Lesotho 971 0
Malawi 1,183 0
Mozambique 455 40
Namibia 51 0
Sierra Leone 596 0
Somalia 0 0
Sudan 1,108 16
Swaziland 1,017 0
Uganda 1,186 6
Tanzania 527 0
Zambia 638 0
Zimbabwe 1,160 0
The OAPI countries tend to be closer to zero on both counts. Perhaps with the exception of Kenya, it is safe to say that there is essentially no patenting activity in these countries.
What does the African patent system look like in reality?
It may be that the WIPO statistics as such are not accurate. However, perhaps a patent in Africa simply does not mean the same as a patent somewhere else.
On the face of it, this might sound like a good thing: if there is no real functioning patent system, IPR will not cause problems. On second thought, the idea is not so good after all, because it results in a random system.
This is particularly clear in the case of Plumpy’Nut. In the United States, the case has gone to court when two American companies sued Nutriset in 2009 and tried to invalidate the whole patent. See presentation on the case against Nutriset. The companies did not win (Press release, summary, legal decision); nevertheless, in the US system, the option of a court case existed.
It seems that no one in Africa has tried to do anything, even though Nutriset’s own patent usage agreement shows that the patent is valid in all of the OAPI countries as well as twelve of the ARIPO countries.
In practice, this implies that it may actually be quite simple to get pan-African coverage for a patent: submit it to OAPI and ARIPO, whose skills in patent examination may or may not be good. If it is granted in both, then 30 poor countries in Africa are immediately covered. Given the level of patent knowledge in these countries, it may or may not be possible to get invalid patents revoked.
A lot more research is needed than this first scratch, but this does not look promising. I would, in fact, consider this situation extremely dangerous and vulnerable to exploitation. There may be one country in Africa where the situation is better (South Africa); this will be analyzed in the next part of the series.
Acknowledgment: The research for this series has been done between 2012 and 2014. The series has benefited greatly from discussions with Kalle Pietilä, Viv Collins, Niko Porjo, and Timo Tokkonen.