PATENT REGISTRATION IN GHANA
In an ever increasingly competitive global market, new and unique innovations are being rolled out and/or developed almost daily. The value of these innovations lies within their protection as intellectual property.
Intellectual property according to World Intellectual Property Organization (WIPO) refers to creation of the mind such as inventions, designs, literary and artistic works and images used in commerce. [[1]] Intellectual property can be an income generating corporate asset. By protecting a company’s intellectual property, the company is vested with rights to exploit or commercialize the intellectual property to generate revenue. [[2]] Intellectual properties are protected by law to create an environment where innovations and creativity are able to flourish. Examples of the Intellectual property that are protected are Copyrights, Patents and Trademarks.
A Patent refers to an exclusive right granted over an invention. The invention can be a process, product or anything that provides a new way of doing something generally. Patents provide the owner of the patented product exclusive rights to the invention. This means the owner has the right to stop anyone from commercially exploiting the patented product. Patents are territorial which means they exist and are guided within the jurisdiction of the country it was registered.
Patents are important because they protect inventions and innovations from infringement. In the Massachusetts Circuit Court ruling in the patent case of Davoll et al. v. Brown, Justice Charles L. Woodbury wrote that “only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man’s own…as the wheat he cultivates, or the flocks he rears in his Judgement on the Violation of Patent right case against the Plaintiff (William C. Davoll and others, 1845). [[3]] His statement highlights the importance of patents in our society.
The purpose of this article is to explain the procedures involved in getting a Patent registered in Ghana in accordance with Patent Act 2003, (Act 657).
APPLICATION FOR REGISTRATION OF PATENT
A patent registration is first filed at the Registrar General’s department specifically the Ghana Patent Registry along with the following formal documents;
- A request containing a petition for the grant of the patent, a description of the inventio with title included and the description should be clear that a person with ordinary skill in the art can carry out the invention and drawings of invention in some cases
- The particulars of the inventor or the applicant of the patent.
- One or more claims defining the matter or reason or purpose for which the patent is sought
- An abstract providing detailed technical information on the invention
Although it is not a legal requirement, a prior art search is a key preliminary step to filing a patent as similar patents are likely to invalidate the patent.
Application fees must be paid, and applications must be submitted in triplicate. A single invention or a collection of innovations that together comprise a single creative notion must be the subject of the application.
Upon receiving a patent application, the Registrar will perform a preliminary examination to determine whether the application contains a petition for the award of a patent, the title of the invention, and the specifics of the inventor or applicant. Thereafter, a filing date will be assigned. The application’s filing date is the day it was received after meeting the aforementioned prerequisites. The Registrar will then review the application to check for formal conformity. The invention’s patentability is evaluated as a last stage through a substantive review. An invention is Patentable when it is statutory, novel, useful, and non-obvious.
Following the substantive examination which looks at the invention’s novelty, inventive step, ability to be used in industry, exclusion from patentability, as well as other factors like the ability to reproduce the invention as disclosed in the application, the clarity of the claims, and whether any amendments go beyond the disclosure of the application as originally filed. by or on behalf of the Registrar, a decision to grant or deny a patent is made. According to the legislation, a decision on a patent application must be made no later than two (2) years following the start of the application’s inspection. In reality, it requires more time than two (2) years. Up until the point at which a decision must be made about the application, the applicant may withdraw or modify the application.
The Registrar will then publish the grant of a patent in the Commercial and Industrial Bulletin and issue a certificate for the grant of patent to the applicant. The patent applicant has a responsibility of renewing the patent annually by paying the annual fees which will be paid in advance beginning a year after the filing. A patent is valid for 20 years commencing from the filing date after which the Patent becomes public domain which means its free for public use.
An agent may submit a patent application on the inventor’s behalf. If the applicant is not the inventor, a statement defending the applicant’s eligibility for the patent must be included with the request. There is a necessity for representation by a legal practitioner who resides in and practices in Ghana where the applicant or inventor does not typically reside in Ghana or has its regular place of business outside Ghana.
All non-English documentation submitted to the Registrar must be accompanied by English translations that have been validated to the Registrar’s satisfaction.
PATENT PROTECTION EXCLUSIONS
According to Section 2 of Act 657 the following are some inventions that are excluded from Patent protection even if they fall within the meaning of Section 1 of the Act.
(a) discoveries, scientific theories and mathematical methods;
(b) schemes, rules or methods for doing business, performing purely mental acts or playing games;
(c) methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body; this provision shall not apply to products for use in any of those methods.
(d) inventions, the prevention within the country of the commercial exploitation of which is necessary to protect public order or morality, which includes: (i) the protection of human, animal or plant life or health; or (ii) the avoidance of serious prejudice to the environment; if the exclusion is not made because the exploitation is prohibited,
(e) plants and animals other than micro-organisms;
(f) biological processes for the protection of plants or animals other than non-biological and micro-biological processes; and
(g) plant varieties. [[4]]
CONCLUSION
There are several advantages to owning a patent. Some of these include;
- I) using it as a bargaining tactic to gain a tactical or competitive edge when dealing with competitors; and
- ii) enhancing a business’s reputation for technical expertise or ability. These benefits could contribute to an improvement in a company’s market value or reputation.
It is highly recommended that businesses that develop functional inventions must secure them through the registration of their patents.
[1] https://www.wipo.int/about-ip/en/#:~:text=Intellectual%20property%20(IP)%20refers%20to,and%20images%20used%20in%20commerce.
[2] https://www.mondaq.com/patent/697640/patent-protection-in-ghana
[3] 1 Woodb.& M.53, 3 West.L.J.151,7 F. Cas.197, No.3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414
[4] https://www.aripo.org/wp-content/uploads/2018/12/PatentAct2003.pdf
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