BY Gracious Tapuwa Chishakwe A PATENT is an exclusive right granted for an invention. It gives its owner the legal right to exclude others from making, using, or selling an invention for a specified period in exchange for publishing and enabling disclosure of the invention. Also, a patent can be described as a legal document that describes an invention and grants a property right to the inventor or the owner of the invention. Section 2 of the Patent Act [Chapter 26:03] defines patents as letters of patent for an invention granted.
Patents are an important part of intellectual property rights and their protection is of paramount importance because it promotes creativity and industrial solutions which allow for economic growth. Protection and registration of patents also foster innovation in that when individuals and organizations protect their ideas and inventions, they reap more benefits and profits.
Conditions for patent-ability
For a mind creation to be registered as a patent it has to meet certain strict conditions. These are the conditions that the patent officers at the Patent Offices will be considering before registering a patent. The World Intellectual Property Organisation provides that granting of patents is done when the invention is new, non-obvious and can be utilised. A mind creation qualifies as a patent when it fulfills the following requirements:
- It must be an invention meaning it must show ingenuity and must not be obvious to someone of average skill in that particular field of invention. Section 2 of the Patent Act defines an invention as any new and useful art, whether producing a physical effect or not, process, the machine, manufacture, or composition of matter which is not obvious, or any new and useful improvement thereof which is not obvious, capable of being used or applied in trade or industry and includes an alleged invention. In order to ascertain such, the invention is examined in light of the prior invention which was invented to provide a solution to the same problem. The examination would be to ascertain whether skilled personnel in the same industry would not deem the new invention obvious.
- It must be novel, meaning that it must be new, first of its kind, and no one must have ever used it or done it before. It cannot be an imitation of an existing invention, nor can it be a miniature of an existing creation rather it must be a new invention that should preferably provide a better way to perform a certain task or absolutely a new way of doing a certain task. It is important to note that reference to the invention in a public forum defeats the requirement of novelty if it contains all limitations of the claimed invention. It can, however, also be an improvement of an already existing invention as long as it is far from being an imitation of an existing invention.
- An invention has to be applicable in the given industry and must be functional and effective such that it makes work easier in that given industry. The invention has to produce the same results as will be claimed by the inventor, therefore, meeting the requirement of industrial applicability.
Inventions for which patents may not be granted
In most jurisdictions, an invention cannot be patented if it is a scientific formula or mathematical theory, when it is a method of doing business, method of playing games, presentation of information, computer programs and methods for treatment. In Zimbabwe, section 2A of the Patents Act [Chapter 26:03] provides for inventions that may not be patented and these are;
- Diagnostics, therapeutic or surgical methods for the treatment of human beings or animals,
- Plants and animals other than microorganisms and
- Essential biological processes for the production of plants or animals other than microbiological processes.
Protection of patents
The protection of patents in Zimbabwe is governed by the Patents Act (Chapter 26:03). Patents are protected through granting and registration of the patent at the Patents Office where they examine the applications and if it passes the above-mentioned requirements and conditions then the patent may be granted and registered. This is done through the Zimbabwe Intellectual Property Office (Zipo). Patents are also granted by international patent offices and regional offices that carry out examination work for a group of countries and examples of these are the following:
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- The African Regional Intellectual Property Organisation.
- The African Intellectual Property Organisation.
- The Kenya Industrial Property Institute
- The European Patent Office
It is important to note that in patent protection, the principle of territoriality applies. This principle states that a patent can only be protected in a country or region in which it is registered because patent protection uses the procedures and laws that would have been specified in that particular country or region to enforce and protect patents. If a patent is not registered in a particular region, the protection of that patent is not enforceable in that region because of the principle of territoriality.
Lifespan
The duration of protection of patents differs with jurisdictions. The Patents Act provides that the term of the patent shall be twenty (20) years from the date at which the application for the patent was lodged. Once the lifespan of a patent registration has expired, the protection of the patent expires unless the registration is renewed. The rationale is that once a patent has been protected for a period of time, the inventor would have benefited from it, and hence it will be time for society to benefit from the invention as well.
Infringement
Infringement of patents occurs when one uses, makes, or imports a patented item without the permission of the patent owner. Patent infringement also occurs when there is selling of something that contains every element of a patented claim or its equivalent while the patent is in effect. As noted earlier, patents are territorial, hence, infringement can only be possible in a country where a patent is in force.
The Patents Act provides for a number of remedies that are available to a patent owner in case of an infringement.
- Gracious Tapuwa Chishakwe is an Associate at Marufu Attorneys-at-Law. She writes here in his personal capacity. To comment on this article you may contact her at [email protected] or 0775024400/ +263 242 788148
