Patents Referred To Medicaments In The Context Of The ARIPO And Its Contracting States

The African Regional Intellectual Property Organization (ARIPO) is empowered to grant and administer patents in accordance with the provisions of the Harare Protocol on Patents and Industrial Designs. According to Harare Protocol, patents shall be granted for any inventions, in all fields of technology, provided that they meet the patentability requirements: novelty, inventive step and industrial application.

On the other hand, concerning medicaments patents, there are some deviations between the legal background established in the Harare Protocol and the National Laws from some Contracting States.

This article will focus on some aspects related to medicaments patents granted by ARIPO in the context of national laws of some Contracting States which do not allow patents in this field of technology or have very restrictive requisites to grant a patent on this subject matter.

Discussion and some results of medicaments patents granted by ARIPO

Nowadays ARIPO has the following 19 Contracting States: Botswana, The Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Sierra Leone, Somalia, Sudan, Swaziland, Uganda, United Republic of Tanzania, Zambia and Zimbabwe.

The patents granted by ARIPO shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State.

The prosecution in ARIPO begins with the patent application, which must contain one or more designations of Contracting States. If ARIPO decides to grant a patent, it shall notify the applicant and each designated State. A copy of the search and examination report shall be attached to the said notification. The designated State shall have 6 months within which to respond to the notification. This deadline is very relevant in the cases wherein medicaments patents are involved, because a designated State has an opportunity to clearly state that the patent shall not be valid in its territory, per instance, due a prohibition of its National Law.

After expiration of the said 6 months, ARIPO shall grant and publish the patent, which shall have effect in those designated States which have not issued any communication preventing that patent from producing effect in its territory, because of the nature of the invention, a patent cannot be registered or granted or has no effect under the national law of that State.

Some Contracting States have the status of...