Africa IP Highlights #3: Patents, other IPRs and reforms in IP policy, legislation and administration

This post is the third and final instalment in the “Africa IP Highlights 2022" series of posts highlighting some of the key developments in IP in Africa in 2022. The first 2 posts covered copyright and trade marks.

As previously stated, the Africa IP Highlights 2022 is the result of collaboration between myself and and Doreen Adoma Agyei and Clarisse Mideva. 

This post is about patents, other IPRs and reforms in IP policy, legislation and administration.

In February, members of the Nigerian Technical Working Group on Geographical Indications met to consider their first draft of a bill for the protection of Geographical Indications. Katfriend, Ifeanyi E. Okonkwo attended the meeting and shared highlights from the Draft Bill here on The IPKat. 

April saw Cape Verde join the Patent Cooperation Treaty (PCT), the Paris Convention for the Protection of Industrial Property as well as the Madrid Protocol and the Geneva Act of the Lisbon Agreement.

June saw a meeting of the Council for TRIPS where WTO members welcomed the adoption of the TRIPS waiver decision on COVID-19 vaccines at the 12th Ministerial Conference (MC12) and began discussions on a possible extension to cover the production and supply of COVID-19 diagnostics and therapeutics. Many have expressed mixed feelings on what was proposed vs what was adopted.

In September, the Nigerian Government collaborated with WIPO to hold a national workshop for the validation of the Draft National Intellectual Property Policy and Strategy (draft IP Policy). The draft IP Policy is aimed inter alia at strengthening both the legal and institutional frameworks for the protection and enforcement of IPRs in Nigeria. Unlike Botswana (see November, below), there is no official copy of the draft policy available online. Thanks to some Katfriends though, this Kat was privileged able to see a copy of the draft policy before the validation exercise.

November: Botswana launched its first ever National Intellectual Property Policy (BIPP). The BIPP was developed with WIPO’s assistance and focuses on promoting IP awareness, education and training, effectively negotiate IP Agreements for Botswana’s benefit, facilitate access to financing for IP generation and acquisition, etc.

December offered a major (in this Kat’s opinion) highlight in the patent field in South Africa in Villa Crop Protection (Pty) Limited v Bayer Intellectual Property GmbH. The Constitutional Court (ConCourt) assumed jurisdiction in a matter involving whether the Court of Patents correctly exercised its discretion when it refused Villa Crop leave to amend its particulars of claim to introduce a special common law defence of unclean hands. Villa Crop sought to allege that in breach of its duty as a patentee, Bayer made statements in European countries (ECs) that are in direct contradiction to the case advanced in its (Bayer’s) infringement proceedings. The ConCourt held that the lower court’s discretion was incorrectly exercised as the invocation of the doctrine of unclean hands was distinct from the statutory claim of patent revocation. The former is directed at whether a litigant patentee was a litigant whom the court should hear while the latter was directed at whether the patent was valid. This Kat has some thoughts on the ingenuity of this patent litigation approach. More on this in a separate post…

And here are matters this Kat is keeping 3 of the 5 senses, alert for:

As reported on The IPKat in May, the Africa Group at WIPO proposed a Work Program on Limitations and Exceptions (L&Es) to WIPO's Standing Committee on Copyright and Related Rights (WIPO-SCCR). The Work Program outlines "concrete and practical steps'' which the SCCR can implement "to provide guidance and support to Member States in the short term", while working in line with the mandate of the committee "towards the adoption of an appropriate international legal" instrument(s) on L&Es”. Katfriends Desmond Oriakhogba and Dick Kawooya who attended the meeting reported that the secretariat of the SSCR was directed to inter alia “present a scoping study on research L&Es and a toolkit on preservation of cultural heritage, developed in consultation with experts, and stakeholders from beneficiary communities, and rights holders and through transparent consultation processes”. 

South Africa’s Minister for Trade, Industry and Competition promised in May that a Patent Amendment bill will be introduced in Parliament in October 2022. No draft Bill has been seen (yet)…

In September, South Africa’s National Assembly passed the Copyright Amendment Bill and sent it to the National Council of Provinces for its concurrence. Hopefully, the Bill’s long walk will end in being assented to by the President in 2023…

There have been incessant calls on Ghana's Government by copyright stakeholders to support the creative industry by making copyright effective in the nation. In response to this call, the Government in 2020, among other initiatives, promised to establish an Arts Rights Court as a special division of the High Court to speedily and effectively deal with copyright infringement cases. It’s nearing the end of 2022 and no Arts Rights Court in sight (yet)…

… And with this, comes the end of Africa IP Highlights 2022. All the best to everyone over the holidays and see you in 2023.

*Map of Africa by Wolfram