Regional Intellectual Property Integration in Developed and Developing Countries

TABLE OF CONTENTS

Table of Contents

Acronyms and Abbreviations

Abstract

I-INTRODUCTION
Background
Context
Restatement of the problem
Restatement of the response
Roadmap

II-AN UNDERSTANDING OF THE EPO AND THE OAPI PATENT SYSTEMS
A-The African Intellectual Property Organization (OAPI)
1) Brief History and Facts about OAPI 10
2) The OAPI Structure
a) The Administrative Council
b) The High Commission for Appeal
c) The Directorate General
d) The OAPI Center for Arbitration and Mediation
3) Major Characteristics of the OAPI Patent System
a) Unitary Patent
b) The absence of grace period and extension for pharmaceuticals
c) Formality-based examination
B-The European Patent Organization
1) Brief History and Facts about the Organization
2) Organs of the European Patent Organization
a) Administration of the European Patent Office (EPO)
b) Departments of the EPO
3) The Major Characteristics of the EPO Patent System
a) Formality and substantial examinations
b) The EPO patents as a bundle of national patents
c) The possibility of patent extension and the absence of grace period

III-THE DISPARITY BETWEEN EPO AND OAPI PATENT SYSTEMS
A-The absence of patents with unitary effect at EPO
1) The diversity of its member states
2) National patenting experience
3) Other justifications for the preservation of national patent systems
B-The EU Unified Patent to complement EPO?
1) An overview of the European unitary patent system
2) The Unified Patent Court (UPC)
3) Questions on Unified Patent Court (UPC) and the unitary patent
C-The OAPI as the incarnation of unitary patent from birth
1) Reasons for the easy integration at the OAPI
a) Historical justifications of the OAPI unitary patent system
b) Socio-legal foundations of the OAPI unitary patent system
c) Economic Justifications of the OAPI unitary patent system

IV-AN EVALUATION OF THE OAPI PATENT SYSTEM
A-Limitations Inherent in the OAPI patent system
1) The OAPI and its desired goals
2) Problems relating to the absence of national patent offices and a patent court
3) The question of formality-based examination
B-Perspectives
1) Efforts required from OAPI member states
a) Establishment of a conducive business climate
b) Creation of research institutions
c) Provision of additional incentives for innovation
d) Innovation oriented policies and public sensitization
2) Recommendations for OAPI
a) Introduction of substantive examination
b) Revisiting the competence of national courts
c) Reinforcing international cooperation

V-CONCLUSION

LIST OF WORKS CITED

ACRONYMS AND ABBREVIATIONS

Abbildung in dieser Leseprobe nicht enthalten

ABSTRACT

This thesis is based on the topic Regional intellectual property integration in developed and developing countries: the cases of the European Patent Office (EPO) and the African Intellectual Property Organization (OAPI) patent systems, begins by examining the foundation and development of the patent system as well as efforts made at the international level to harmonize patent legislations, as the regulation of patents remains the sovereign rights of states. The work introduces the Paris Convention of 1883, (which set the minimum standards especially the principles of national treatment, territoriality, and the right of priority); the Patent Cooperation Treaty (PCT), 1970, which provides a possibility for one to apply for patents in to up to 152 countries, through a single international patent application; the Agreement on Trade-Related Related Aspects of Intellectual Property (TRIPS) 1995, which is noted for its principle of “Most Favoured Nation”, and its provision of a mechanism for bringing an action at the WTO against any contracting state that does not comply with its provisions.

In an attempt to facilitate patent acquisition, five patent organizations have been created, including: the European Patent Office/Organisation; the African Regional Intellectual Property Organisation (ARIPO); the Eurasian Patent Organisation (EAPO); the African Intellectual Property Organisation (OAPI) and the Gulf Cooperation Council Patent Office (GCCPO). While the first three organizations (EPO,ARIPO and EAPO) have decentralized patent systems, the last two (OAPI and GCCPO) are the only existing unified (unitary) patent systems of the world, at least for the moment.

However, the work is mostly focused only on EPO and OAPI, as classical cases of north/south approaches to regional patent groupings. A comparative analysis between these two regional structures shows that the Yaounde-based OAPI was created in 1977 and comprises of 17 African states, it is characterized by its patent with unitary effect; absence of grace period and no extension possibility for patents on pharmaceuticals; and its formality-based examination. While the Munich-based EPO on its part, was created in 1973 and comprises of thirty-eight (38) member states, two (2) extension states and four (4) validation states, and it is characterized by: decentralized patent system; formality and substantive examinations; absence of grace period, and the availability of Supplementary Protection Certificates for pharmaceuticals.

With unification and decentralization approaches being the major disparity between the OAPI and the EPO patent systems, it is evident that the OAPI adopted a unified patent approach from birth due to several factors, including: the historical ties between its member states; the existence of an identical sociological and legal contexts; and the desire to maximize the benefits of a large regional IP market, as most of the OAPI member states are too small and poor to attract foreign patent applications. The EPO on its part, could not opt for a unitary patent because of the cultural and legal diversity of its member states, most of whom have a long patent history and strong national patent institutions. Moreover, most of the EPO member states are not only reasonably populated, but are rich and industrialized enough to attract patent applications, as the patentees would have interest in not only the market, but to prevent the viable firms of these countries from making and using the products. It is due the uncertainty created by virtue of the diversity of the EPO member states, that its members from the European Union common market have opted for a unitary patent outside the EPO. This is because these states, by virtue of their belonging to the EU, have patent laws that are similar to an extent, and they are subjected to European Institutions like the CJEU, which have the mandate to ensure harmonization of national laws. However, the EU unitary patent remains a project, as its entry into force is delayed by the German petition on the ratification of the Unified Patent Court Agreement, and the BREXIT issue.

If the OAPI is the first organization to adopt the unitary patent system which EPO and the EU member states are still striving to have, it does not mean there is a higher economic integration among OAPI member states, neither does the organization represent a perfect patent system, as the organization is still lacking in several aspects. Firstly, OAPI still does but only formality examination, which may lead to the issuance of patents to inventions that may not qualify for such protection, as novelty and inventive step can best be determined only through substantive examination. Secondly, the attribution of competence over patent litigation and invalidity actions to national courts remains questionable, as most of these courts are inexperienced when it comes to intellectual property issues, neither are they really independent from the executive. Thirdly, the absence of national patents would be of great challenge to local inventors who may not have any interest in protecting their inventions in all the OAPI member states. They are obliged to obtain expensive OAPI patents and pay annuities for the whole OAPI area, even when they have no means or interest in commercializing their inventions in most of the OAPI countries, and even when there is no risk of patent infringement in such countries. Fourthly and lastly, OAPI has not been successful with his goal of achieving the economic development of its member states, through intellectual property, as stated in Art.2(1)(e) of the Bangui Agreement of 1977 (as amended). After several decades of existence of OAPI, all its member states remain poor and unindustrialized countries, irrespective of the huge quantity of technical information disclosed in patents.

For a better functioning of the OAPI patent system and the realization of its goals, this work has recommendations for both OAPI and its constitutive member states. As for OAPI, the organization could start by introducing a substantive examination system, in addition to its formal one, like any other patent organization. Also, considering that OAPI grants an average of only 459 patents a year, it would not be rational for the organization to have a standing patent court like the UPC of the EU unitary patent project, especially as patent litigations are almost inexistent. However, it would be less serious to give all national courts competence on patent litigation. The inexistence of litigation could be a direct consequence of the absence of a credible patent court, as patentees may not have confidence in the national courts. An appropriate solution would be the introduction of a provision requiring member states to designate specific courts to handle the patent related issues, so that the judges of such courts may be prepared on such issues before hand, as it is the case with the pan-European trademark and design rights. The organization may benefit from cooperating and exchanging good practices with other organizations like EPO, and most especially, with the would be EPO-administered EU unitary patent system and its associated Unified Patent Court.

Member states on their part, may help the OAPI realize its economic goals by creating favorable business climate, through the proper application of democracy and decentralization, to reduce socio-political instability, which are major enemies to economic development. The creation of well-equipped research centers is equally another measure, but considering that most OAPI member states are not viable enough to individually establish and manage such centers, the federation of their resources to build a few but more efficient centers could be an appropriate solution. The member states may as well incentivize innovation through other means, like through the honorific distinction of local inventors, for instance, as well as drafting innovation oriented policies. They should as well double their efforts in creating public awareness on how the patent system could be used to stimulate development. Also, the introduction of national patents would not be necessary for the moment, especially as most OAPI patent applications are international PCT applications, filed by viable multinationals, and domestic applications remain very insignificant in number.

All in all, if OAPI has easily adopted a unitary patent system, it is not because its member states are more integrated than those of EPO, it was simply an effort to reflects the realities of the OAPI member states, as they try to fit themselves in the global IP system.

I-INTRODUCTION

BACKGROUND

Regional patent groupings characterize the globalised world of today, especially as states try to overcome the challenges posed by their individual patent systems. Although there are other justifications for the patent system (including rewarding inventors and promoting the disclosure technical information over secrecy), however, the desire to promote technological progress by incentivize innovations through temporary exclusivity has been cited as the economic foundation of patents^[1]. A patent is a territorially valid document that confers the inventor of a given product, the right to exclude all other persons from making, using, selling, importing or exporting the said invention without the consent of the inventor (usually for a period of 20 years, counting from the filing date of the patent application^[2] ). But during the life of the patent, the product can be used for academic or experiment purposes and in some other exceptional cases without the consent of the patentee.^[3] However, stockpiling the product so as invade the market upon the expiration of the patent would constitute infringement.^[4] Unlike trademarks (that can be protected forever) and copy rights (that can be protected throughout the life of the author plus 70 years after his death), patents have a shorter term of protection (20 years from the filing date) because patents are not only broad in scope (as they cover even independent creations), but also because patents cover basic necessities like medications and other indispensible products which the society would face serious difficulties if such exclusivity is to last for so long. Although in the past, societies had given some degree of exclusivity to inventors in one way, the very first patent legislation was the Venice Patent Law of 1474 which was in force till 1549.^[5] However, the patent system is not at the origin of innovation on earth. There were inventions prior to the coming into existence of the patent system, and there would have still been technological progress if the patent system were to be eliminated. Nevertheless, such progress would have been very slow in the absence of patent system, as individuals today strive to innovate so as thanks to the “reward-by-monopoly” incentive of the patent system.^[6]

The said exclusivity stimulates innovations in that it encourages firms to willingly invest huge sums in research and development, for the purpose of being the first to invent and file a patent application, in order to make huge profits from the patented invention, due to high prices that such firms may charge for such products during the term of the patent. It is even in an effort to encourage the commercialization of inventions, that patents may be issued at the very early stages of the invention (without requiring a working model),^[7] provided the invention is sufficiently disclosed and satisfies the novelty, inventive step (non-obviousness), and industrial applicability requirements.^[8] In return for such protection, the disclosure of the invention has to be done in a manner that would enable a person with ordinary skill in the art to make and use the invention.^[9] So, after the expiration of the patent, the invention would freely be available in the public domain, thus rival firms would equally be manufacturing and selling the formerly patented product, and such competition would lead not only to enough product availability, but also to low prices that would benefit the consumers.

But as in the absence of patent protection, many firms would not have been willing to invent, as it usually involves huge sums of money, for fear of “unsanctioned” acts of product imitation from rival firms, thus the initial inventor may not be able to recoup the money invested in such research. Moreover, the few firms that would be able to invent would readily opt to protect their inventions through trade secrets, and if such secrets are well protected, they may charge high prices for several decades, if not centuries.^[10] For patents to be granted to rightful inventor and yield the required results, efforts have been made to harmonize patent systems to a certain degree. Today, patent applications are mostly filed by multinationals, and in 2016, the top 10 patent applicants worldwide are Asia-based multinationals. For instance, Canon Inc. of Japan was the top applicant for the period from 2011 to 2014, with 30,476 patent families worldwide. It was followed by Samsung Electronics (26,609) of the Republic of Korea and then Japanese companies like Panasonic (22,899), Toshiba (22,627) and Toyota Jidosha (22,190). The highest-ranking non-Asian applicant was Robert Bosch of Germany (16,582) and ranked 12th.^[11]

CONTEXT

With patents being territorially limited, they have posed some serious problems in the past, especially pertaining to the novelty requirement as well as the difficulty involved in filing international applications. For instance, without international patent regulations, an inventor would have been required to be physically present in all the countries he desires to obtain protection, to simultaneously file patent applications in the respective patent offices of those countries without any delay, as disclosure in country A would disqualify the application in country B on novelty grounds. Also, even when the applications are supposedly filed at the same time, the inventor would have to cover all the administrative and translation cost in all the countries concerned. It was due to these challenges that attempts have been made at both the international and regional levels, to redress the situation.

At the international level, one may cite the famous Paris Convention for the Protection of Industrial Property.^[12] Apart from instituting national treatment^[13] and reaffirming the territoriality of patents,^[14] the Convention resolved the problem of prior disclosures by providing for the right of priority, meaning that on the basis of a regular first application filed in one of the member states of the Paris Union, the patent applicant may within 12 months, apply for patent protection in any of the other member of the Union.^[15] The subsequent applications would be treated as if they were filed on the same day as the very first one. So therefore, the patent applicant no longer needs to apply simultaneously file applications to all the patent offices of countries where protection is desired.^[16] The Paris Convention equally set the minimum standards by requiring the mentioning of the inventor’s name on the patent,^[17] as well defining the possible grounds for a compulsory license.^[18]

The Paris Convention solved a good number of problems relating to patent applications, however, it still required that applicants still displace themselves or send their representatives to the individual patent offices of the countries concerned within the 12 months of priority period. It is due to the high cost associated with such displacement and other associated cost that the Patent Cooperation Treaty (PCT) was concluded in 1970. The PCT makes it possible for an inventor to simultaneously seek patent protection in about 152 countries,^[19] by simply filing one international application at WIPO International Bureau, through the national patent office of one of the contracting, designating the countries in which he intends to seek patent protection.^[20] Upon respecting the 12-month priority period, the applicant has up to 18 more months for his application to enter the national phase.

The PCT route is widely used, and in 2017 for instance, a total of 243,500 international PCT applications were filed, indicating a 4.5 percent increase, as compared to 2016, representing the eighth year of consecutive growth. The highest number of applicants were based in US (56,624 applications), followed by those in China (48,882 applications), Japan (48,208 applications), Germany (18,982 applications), South Korea (15,763 applications), France (8,012 applications), UK (5,567 applications), Switzerland (4,491 applications), then followed by The Netherlands (4,431 applications) and Sweden (3,981 applications).^[21] But in terms of the number of patent applications received by each country, China received 1,338, 503, in 2017, an amount that is higher than that of US, EPO, Japan and South Korea combined.^[22]

Although the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs agreement) introduced the principle of “the most favored nation” which obliges member states to extend any advantages accorded to nationals of a given state to nationals of all other member states,^[23] nevertheless, the TRIPS Agreement did not really alter Intellectual Property Rights as initially laid down by the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). However, the TRIPs Agreement is regularly cited because it is the only international intellectual property agreement with an enforcement mechanism.^[24]

The creation in 1967 of the World Intellectual Property Organization (WIPO) has significantly facilitated the coordination of intellectual property efforts at a global level. WIPO has as mission, to promote of the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization, and to ensure administrative cooperation among the regional organizations.^[25] With its headquarters in Geneva, WIPO is a specialize agency of the UN, and it is in charge of administering up to twenty-six (26) treaties, including the Paris Convention, the PCT.^[26]

Despite these efforts at the multilateral level, one main challenge remained unresolved-having to meet the national requirements of each and every country where protection is desired, as neither the Paris Convention, nor Patent Cooperation Treaty, nor WIPO, nor TRIPs do provide for the granting of international patents. Patents remain territorial and sovereign rights of the state concerned. These multilateral agreements (especially the Paris Convention and the PCT) simply facilitate patent application procedure, and the fate of each application would be determined by the Patent Office of the state concerned.^[27]

Due to the existence of these linguistic and administrative barriers that may discourage patentees from designating a number of countries, in an effort to facilitate the patent acquisition procedure, states of certain geographical regions have decided to create regional intellectual property organizations, with varying degrees of integration. So far, one can count up to five (5)^[28] regional patent organizations in the world, namely: the European Patent Organization and its European Patent Office (EPO), created in 1977; the African Intellectual Property Organization (OAPI), created in 1977; the African Regional Intellectual Property Organization (ARIPO) founded in 1976; Eurasian Patent Organization (EAPO) ;^[29] and the Patent Office of the Cooperation Council for the Arab States of the Gulf (GCCPO).^[30] Of these five regional patent organizations, only the OAPI and the GCCPO do have unified/unitary patent systems, while EAPO, EPO and ARIPO do have decentralized patent systems. But this work would dwell on OAPI as a classical example of an approach of developing countries (especially because the GCCPO that is of the same category is more limited in space and in time).^[31]

RESTATEMENT OF THE PROBLEM

Of these regional patent organizations, this thesis interested in the EPO and the OAPI, two classical examples of regional patent offices of developed and developing countries, respectively. While the OAPI has opted for a unitary patent from birth, its European counterpart was unable to reach this advanced stage of patent harmonization, and today, some EPO member states have chosen to set a unitary patent system outside the EPO. The central question is: why was the OAPI able to realize unified patent system while the EPO could not? And to what extent does the OAPI represent an ideal regional patent system? In Art 2 (1)(e) of the Bangui Agreement (as amended), the use of intellectual property to promote the economic development the Contracting States was cited as one of the major goals of the OAPI. How successful has the OAPI been in realizing this goal?

RESTATEMENT OF THE RESPONSE

Unlike the diversified the EPO membership, the similar economic and socio-cultural situation of the OAPI member states was and remains the foundation of the OAPI unitary patent system. It is diversity that accountable for the EPO’s decentralized patent system and has made some more similar jurisdictions to seek for patent unification out of the EPO. However, despite being one of the most successfully harmonized regional patent system on earth (as the OAPI member states do not have national patent offices), the OAPI may not be an ideal patent system as it is still lacking in a good number of areas, especially in relation to patent examination and the attainment of the development related goals its patent system.

ROADMAP

This work would do a comparative analysis of the EPO and the OAPI patent systems in three major parts. The first presents both patent systems, explaining their origins, composition, and main features of their respective systems. The second part focuses on a comparative analysis of both systems in terms of the integration approaches, before dwelling on the last part, which makes a critical examination of the OAPI patent system, which is seemingly the most successfully integrated organization.

II-AN UNDERSTANDING OF THE EPO AND THE OAPI PATENT SYSTEMS

The EPO and the OAPI patent systems have been designed to reflect the realities of their respective member states, taking into consideration their history, their current economic situations as well as their aspirations. This part of this work would basically examine both the OAPI and the EPO organizational structures in (A) and (B), respectively.

A) THE AFRICAN INTELLECTUAL PROPERTY ORGANISATION

Popularly known by its French acronym, the OAPI (standing for l’Organisation Africaine de la Propriété Intellectuelle), the African Intellectual Property Organization is one of the two Africa’s regional intellectual property organizations.^[32] A brief history of the OAPI, its institutions as well as the major features of its patent system would be examined in the following paragraphs.

1) A BRIEF HISTORY AND FACTS ON OAPI

The genesis of the OAPI could be traced as far back as 1962, when there was a need for a regional intellectual property organization to suits the aspirations of the newly independent African states. On September 13, 1962, the Agreement Establishing the African and Malagasy Office of Industrial Property (OAMPI) was concluded in Libreville, Gabon, by twelve (12) Heads of State and Government. This Libreville Agreement was revised in Bangui (Central African Republic) on 2 March 1977 to give birth to the African Intellectual Property Organization (OAPI).^[33] However, the Bangui Agreement was equally revised in 1999, in order to: adapt the provisions of the agreement to meet the standards required by some binding international intellectual property treaties;^[34] simplify procedures for issuing securities; extend the missions of the OAPI to include the promotion of economic development in member states by means of effective protection of intellectual property protection and related rights, as well as providing training on intellectual property; and to extend protection to new objects, such as plant varieties and layout designs of integrated circuits.^[35]

With its headquarters in Yaounde-Cameroon,^[36] the OAPI counts up to 17 member states today, all of which are African countries.^[37] These countries include: The Republic of Benin, The Republic of Burkina Faso, Cameroon, The Central African Republic, The Republic of Chad, The Union of Comoros, The Republic of Congo, The Republic of Ivory Coast, The Republic of Equatorial Guinea, The Gabonese Republic, The Republic of Guinea , The Republic of Guinea-Bissau, The Republic of Mali , The Islamic Republic of Mauritania, The Republic of Niger, The Republic of Senegal and The Togolese Republic.^[38] These member states constitute a total population of approximately 174. 746 million inhabitants^[39] (covering more than 7 million km2), with Cameroon and Ivory Coast being the most populated (each having about 23 million inhabitants), while Comoros is the least populated (with 795, 601 inhabitants).

The OAPI membership is limited to African states that are at least parties to WPO, Paris and Berne Conventions and the PCT^[40] However, any African state not party to the Bangui Agreement may apply to become an associated state of the OAPI.^[41] But an associated state is not an OAPI member state, and it cannot for example, request for the extension of OAPI patent protection to its territory. Nevertheless, an associated state has the right to benefit from the services rendered by the OAPI only in relation to intellectual property documentation and information.^[42] So far, the OAPI does not have any associated state.

Although this work is centered only on the OAPI patent system, however, it is worth nothing that the organization has a broader competence, as it serves as the industrial property office or national office for each of the member states^[43] having competence on patents, utility models, trademarks, industrial designs, geographical indications, plant variety protection, and also on copyrights, unfair competition, layout-designs of integrated circuits and the protection and promotion of cultural heritage.^[44] As a Patent Office, the OAPI issues an average of 459 patents per year.^[45]

Abbildung in dieser Leseprobe nicht enthalten

Fig. (A): The OAPI member states (Source: www. managingip.com)

2) THE OAPI STRUCTURE

The OAPI has three statutory organs and one non-statutory body. The statutory Organs include: Administrative Council; the High Commission for Appeal; and the Directorate General.^[46] The non-statutory one is the OAPI Centre for Mediation and Arbitration. These organs shall be examined in details in the following paragraphs.

a) The Administrative Council

The Administrative council is the highest authority of OAPI. It comprises of an equal participation of the member states (with one state having just one representative), although exceptionally, a member state can entrust its representation in the Council on another member state. In case of such entrustment, no member of the Council shall represent more than two states.^[47] Associated states of OAPI are not eligible to participate in the Council.^[48] The Council is headed by a Chairperson, and meets in one annual ordinary session. However, at the request of one-third of the membership, or at the request of the Director General of the OAPI, the Chairperson of the Administrative Council would convene an extraordinary session.^[49] Decisions are taken in a simple majority of the present or represented members, and each member would be entitled to one vote.^[50]

The Administrative Council defines the general policy of the Organization, as well as controlling the latter’s activities. In this regard, it has the following functions: drawing up the regulations necessary for the application of the Bangui Agreement and its Annexes; establishing the financial regulations and the regulations relating to the fees and to the High Commission of Appeal, the general staff regulations and the regulations on professional representatives; supervising the implementation of the above mentioned regulations; approving the program and annually vote the budget and, where necessary, any amended or additional budgets, and control their implementation; examining and approve the Organization’s annual accounts and inventory; approving the annual report on the activities of the Organization; appointing the holders of unclassified posts (including the Director General) and designate the auditor of the Organization; ruling on applications for admission as members or as associated States of the Organization; setting the amount of any contribution to be made by member States or by associated states; deciding where necessary on the creation of ad hoc committees on specific issues; and determining the working language or languages of the Organization.^[51]

b) The High Commission for Appeal

The OAPI High Commission of Appeal composes of three members selected by the drawing of lots from a list of representatives designated by the member States, each State having designated one representative.^[52] It is responsible for ruling on appeals following: rejection of applications for titles of industrial property protection; rejection of requests for the maintenance or extension of terms of protection; rejection of requests for reinstatement; decisions on oppositions.^[53] The sessions of the High Commission of Appeal and the appeal procedure before it are governed by rules adopted by the Administrative Council.

The decisions of the High Commission are final. It is worth noting that the High Commission for Appeal, like most of its counterpart organs, does not handle matters relating to intellectual property rights infringement, as such matters fall under the jurisdictions of national courts.^[54]

c) The Directorate General

The Directorate General takes care of the day-to-day management of the OAPI. Placed under the authority of a Director General, the Directorate General implements the instructions of the Administrative Council and carry out the tasks deriving from the provisions of the Bangui Agreement and its Annexes, and reports to the Administrative Council.^[55]

As the highest official of the organization, the Director General is appointed for a five-year term (which may be renewed once), and he has the following functions: representing the Organization in all acts governed by civil law; being answerable for the management of the Organization to the Administrative Council, to which he shall report and with whose instructions he shall comply in matters concerning the internal and external affairs of the Organization; producing drafts for the budget, program and balance sheet and also periodical activity reports which he shall convey to the member States; taking part, without the right to vote, in all sessions of the Administrative Council and being secretary of those sessions ex officio; and recruiting, appointing, and dismissing or otherwise terminating the appointments of the staff of the Organization, with the exception of unclassified staff, in accordance with conditions laid down in the general staff regulations.^[56]

d) The OAPI Centre for Arbitration and Mediation

As earlier mentioned, this Center is not a statutory organ of the OAPI, unlike the preceding ones, because it’s coming into existence was not provided created the Bangui Agreement. Created in 2016 by Regulation No.56/22 of the Administrative Council of the OAPI of 7 December 2016, the OAPI Centre for Arbitration and Mediation is a neutral and non-profit alternative dispute resolution mechanism, governed by OAPI regulations.^[57] Located in the premises of the OAPI headquarters in Yaounde, the Center's mission is to provide an arbitration solution to intellectual property disputes, be they of national or international character, pursuant to an arbitration clause or an arbitration agreement. The dispute can be submitted by any party domiciled or habitually resident in one of the Member States of the OAPI, or, in the absence of such residence or domicile, if the contract is to be performed in whole or in part in the territory at least one of the Member States of OAPI, or if the intellectual property rights in dispute have been issued by the OAPI.^[58] The Center's mission is equally to assist parties in settling their disputes amicably through mediation.^[59]

Although the Regulation creating the Center entered into force on 1st January 2017,^[60] however, the Center is expected to go operational in the course of 2018, and the OAPI is already recruiting arbitrators for that purpose.^[61] However, it is worth nothing that the OAPI does not have a central judicial body, as the Bangui Agreement gives the national courts competence to handle cases relating to the invalidity and infringement of intellectual property rights.^[62] With this in mind, it is worth examining the characteristics of the OAPI patent system.

3) MAJOR CHARACTERISTICS OF TH PATENT SYSTEM

The main features of the OAPI patent system include: unitary patent; formality-based examination; the absence of extension period for pharmaceuticals, as explained in the following paragraphs.

a) Unitary Patent

The OAPI unitary patent is the organization’s outstanding feature that distinguishes it from some other regional patent organizations. From creation in 1977, the OAPI plays the role of National Patent Office for its member states. In fact, Art 2 of the Bangui Agreement clearly provides that: “(3) For each of the member States, the Organization shall serve both as the national industrial property service within the meaning of Article 12 of the aforementioned Paris Convention and as the central patent documentation and information body. (4) For each of the member States also party to the Patent Cooperation Treaty, the Organization shall serve as the "national Office," the "designated Office," the "elected Office" or the "receiving Office" within the meaning of Article 2(xii), (xiii), (xiv) and (xv) of the aforementioned Treaty.”^[63]

So, the OAPI member states do not have individual national patent offices, but however, there exists an effective cooperation between the ministerial departments in charge of industrial property matters in individual member states and the OAPI. The member states have no national patent legislations, neither do they grant national patents. In brief, the OAPI member states have ceded this part of their sovereignty to the regional Organization.

Once granted, an OAPI patent has effect in all the 17 member states without prior approval of any national authority, and revocation by a national court in one member state would automatically lead to the loss of such protection in all the other OAPI member states, except if such revocation was made on the grounds of public policy or morality.^[64] This exception is in accordance with the TRIPS Agreement, which provides in its Art. 27(2) that: “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public (public policy) or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”^[65] What constitutes public policy or morality may from country to country, and the concept is evoked to protect basic values of the law of the forum.

Patent applications are filed directly at the OAPI headquarters in Yaounde, but however, liaison offices of the OAPI (usually ministerial departments in charge of industrial property in the respective member states) may receive local patent applications and forward them to the OAPI headquarters within five (5) working days.^[66]

This centralized system of patent administration may attract patent applications in that once a patent is issued, it is automatically valid in all the OAPI member states, and the applicant no longer needs to validate his patent at the national level (as it is the case with the EPO), thus there is no fear that the patent may be valid in one country and invalid in another, neither would the applicant be required to meet some national administrative requirements nor would he translate the patent into Spanish and Portuguese which are the official languages of Equatorial Guinea and Guinea Bissau, respectively. The only fear is that, once the patent is invalidated by the court of one member state, it becomes invalid in all the OAPI member states, except such invalidation is done on grounds of public policy or morality.^[67] This makes the difference with the decentralized patent administration systems like that of the EPO, where invalidation in one country may not affect the validity of the patent in other, thus giving some hope to the patentee.

b) The absence of grace period and extension for pharmaceuticals

The OAPI does not provide for grace period, unlike some patent systems. The grace period is of significant importance, especially as a considerable number of patent applications come from academic or research institutions.^[68] Under normal circumstances, the disclosure of an invention prior to the filing of the patent application would meet a refusal of patent, because the invention would no longer meet the novelty requirement. However, certain patent systems provide for a period of time (known as grace period), during which prior disclosure by the inventor would not affect the novelty requirement. Some countries provide up to one year of grace period, including countries like the USA, Canada, Brazil, Australia, Mexico, Turkey, South Korea and India.^[69] Also, countries like Japan and the member states of the Eurasian Patent Organization (including Russian Federation, Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Moldova^[70] ) provide for six months of grace period.^[71]

The European Patent Convention does not provide for grace period as such, however, disclosure at an officially recognized international exhibition, or disclosure as a result of an evident abuse in relation to the applicant would not destroy novelty, if the application is filed within six months of that disclosure.^[72] Similarly, the OAPI patent law knows no grace period as well, and consequently, any disclosure prior to the filing of a patent application at OAPI automatically invalidates any subsequent patent application on novelty grounds.

Also, the Bangui Agreement does not provide for an extension of patents, not even for pharmaceuticals, unlike the EPO, US and Japanese patent systems.^[73]

Although some major jurisdictions like the EPO do not provide for a grace period, however, its well-founded nature is not contested. The absence of grace period in the OAPI is disadvantageous to local inventors who may not have good knowledge of the patent system, and would disclose their inventions prior to gaining knowledge of the secrecy obligation surrounding the novelty requirement. It would not be too faire to sanction such people with invalidity, neither would it be fair to sanction a student who has hastily published his research in respect of an academic deadline. So, the absence of the grace period, just like that of supplementary protection certificates for pharmaceuticals (for patentees who have been delayed to enter the market by the administrative procedure for market authorization^[74] ), may not be faire, thus OAPI may consider introducing these features.

c) Formality-based examination

Due to the high social cost that patents have on the society (as patentees may charge high prices during the term of the patent, patent offices are usually prudent in ensuring that patents are not granted to inventions that do not merit such protection. That is, following the reward theory, the inventor should not be rewarded when he has not taught the society something new. It is based on these grounds that patents are granted only to inventions that are new, involve an inventive step and are useful. Failure to demonstrate these requirements may not only lead to the denial of patents from the onset, but a later discovery would lead to an invalidity action before a competent judicial authority.

It is for the purpose of rewarding the appropriate inventors and to encourage sequential innovations after the life of the patent, that the patent offices usually adopt two types of patent examinations: the formal and substantial examinations. While the formality examination aims at determining whether the invention is patent eligible and if the necessarily administrative requirements have been met, the substantive examination is carried out by scientists to determine whether the patent eligible invention is patentable (that is, if it is new and involves an inventive step).^[75]

Although the Bangui Agreement equally limits the granting of patents only to inventions that are new, involve an inventive step and are industrially applicable, however, OAPI does not do substantive examination of patent applications. In this regard, patent applications at the OAPI (which are mostly PCT applications) are hardly ever rejected.^[76] This form of examination, unlike the substantive one, is fast, cheap (as it does not require the establishment of a well-equipped laboratory) and does not require scientific experts. However, the formality based examination equally has its limits.^[77]

After having presented the OAPI and the features of its patent system, the next part of this work is centered on its European counterpart, the EPO.

B) THE EUROPEAN PATENT OFFICE (EPO)

The European Patent Organization is a regional body in charge of administering patents in its member states, through its European Patent Office (EPO) and unlike the OAPI that has competence on all industrial property matters, EPO handles only patent related issues.^[78] With English, French and German as official languages, the EPO is based in Munich, Germany.^[79] EPO is in charge of granting patents that have effects in the member states concerned. EPO has branches in The Hague, Berlin, Vienna and Brussels, but these branches do not examine applications, neither do they grant patents. They only serve the purpose of information and liaison.^[80] This part first presents a brief history and facts about the EPO, its organs, as well as the major features of the EPO patent system.

1) BRIEF HISTORY AND FACTS ABOUT EPO

Both the European Patent Organization and its European Patent Office were created by the European Patent Convention, which is a multilateral treaty that was concluded in 1973, and entered into force in 1977.^[81] As from 1977, an inventor is able to obtain a single European patent issued by EPO (European Patent Office) for all the designated member states, thus reducing the cost associated with having to apply for such protection in the individual member states (even though the patent has to be validated at the national level).^[82] Although the European Patent Organization was a product of seven (7) European countries (including Belgium, Germany, France, Luxembourg, Netherlands, Switzerland and the United Kingdom), today the organization counts up to thirty-eight (38) member states, two (2) extension states and four (4) validation states.^[83]

While the EPO member states are equally referred to as the contracting states to the European Patent Convention, an extension or a validation state is non-contracting state to the EPO that have concluded a bilateral agreement with the EPO, for the extension of EPO patents to its territory. So inventors can designate the said member states in their EPO applications, and such designation would have effect upon payment of extension/validation fee at the EPO (although it is the national patent law of the extension/validation state that would apply).^[84] While extension agreements only involve European countries, the validation agreements are concluded with non-European states. So far EPO had signed extension agreement with ten (10) European countries: Republic of Slovenia (entry into force: 1 March 1994); the Republic of Romania (15 October 1996); the Republic of Lithuania (5 July 1994); the Republic of Latvia (1 May 1995); the Republic of Croatia (1 April 2004); the Former Yugoslav Republic of Macedonia (1 November 1997); Albania (1 February 1996); the Republic of Serbia (1 November 2004); Bosnia and Herzegovina (since 01 December 204); and Montenegro (since 01 March 2010). Agreements with the last two countries on this list (Bosnia and Herzegovina and Montenegro) are still in force, while the rest of the agreements have been terminated upon accession of the states to the EPO.^[85]

Abbildung in dieser Leseprobe nicht enthalten

Fig. B. The Geographical coverage of the EPO

Validation states on their part are similar to extension states, but the difference is that validation agreements are concluded only with non-European countries. The EPO has so far signed validation agreements with four nations: Cambodia; Moldova; Morocco; and Tunisia.^[86] After presenting these facts about the EPO, the organs of the European Patent Organization are examined below.

2) ORGANS OF THE EUROPEAN PATENT ORGANISATION

The European Patent organization is has two main organs: the European Patent Office and the Administrative Council.^[87] The composition and functioning of these two organs are explained in the following paragraphs.

a) Administration of the European Patent Office (EPO)

Based in Munich, but with branches in the Hague, Berlin, Vienna and Brussels, the European Patent Office (EPO) is headed by a president who is answerable to the Administrative Council.^[88] Assisted by a Vice-President, the President of the EPO ensures of the day to day functioning of the EPO and its branches; preparing and implementing budget; and may propose the amendment of the EPC, general regulations or decisions that fall within the competence of the Administrative Council.^[89] He appoints EPO employees, decides on promotion, and exercises disciplinary authority over the employees and summits annual management reports to the Administrative Council.^[90] For proper functioning, the EPO has several departments.

b) Departments of EPO

The departments of the EPO include: a Receiving Section; Search Divisions; an Examination Divisions; Opposition Divisions; a Legal Division; Boards of Appeal; and an Enlarged Board of Appeal.

While the Receiving Section is responsible for the examination on filing and the formality examination of patent applications,^[91] the Search Divisions conduct search and draw search reports as a preliminary stage for determining novelty.^[92] The Examining Divisions is responsible for conducting the substantive examination of European Patent applications. In this regard, each of the Examining Divisions consists of three (3) technically qualified examiners, and even oral proceedings are carried out before the Examining Division.^[93]

The Opposition Divisions are responsible for the examination of oppositions against any European patent. Depending on the field, the division consists of three (3) technically qualified examiners, at least two of whom shall not have taken part in the proceedings for grant of the patent to which the opposition relates.^[94] While the Legal Division is responsible for decisions relating to entries in the Register of European Patents, and the registration on and deletion from the list of professional representatives,^[95] the Boards of Appeal are responsible for the examination of appeals from decisions of the Receiving Section, the Examining Divisions and Opposition Divisions, and the Legal Division.^[96] The Enlarged Board of Appeal on its part, is a five-member board that is in charge of deciding on points of law referred to it by Boards of Appeal; giving opinions on points of law referred to it by the President of the European Patent Office and deciding on petitions for review of decisions of the Boards of Appeal.^[97] With this understanding, this work examines the features of the EPO patent system below.

3) MAJOR CHARACTERISTICS OF THE EPO

PATENT SYSTEM

The three major features of the EPO patent system include: formality and substantial examination; EPO patent as a bundle of national patents; and the availability of extension for pharmaceuticals and the absence of grace period, as explained in the following paragraphs.

a) Formality and Substantial Examinations

As earlier mentioned, formality and substantial examinations are the two main ways of determining the patentability of an invention. Unlike the OAPI patent system that does only the formality examination, the EPO system practices both forms of examination. It is for this reasons that the Examination Divisions comprise of technically qualified examiners.^[98] The examination procedure is well defined in Rules 70, 71 and 72 EPC. When examination is already conducted and the EPO patent is granted, such examination may no longer be conducted during the national phase of the patent, however, the fate of the patent is determined by national laws.^[99]

b) Then EPO Patent as a Bundle of National Patents

The EPO patent is not a unitary patent, unlike the OAPI patent. The EPO patent is a bundle of national patents for two main reasons: there is no uniform EPO patent law and the fate of an EPO patent is determined by national laws. Art 74 EPC clearly states: “Unless this Convention provides otherwise, the European patent application as an object of property shall, in each designated Contracting State and with effect for such State, be subject to the law applicable in that State to national patent applications.”^[100] Art 64 even goes further to add that : “(1) A European patent shall, (…), confer on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State”. (3)“Any infringement of a European patent shall be dealt with by national law.” ^[101]

Once issued, an EPO patent has to be validated at the national level of each designated Contracting State. However, the absence of an EPO patent law has led to contradictory decisions on the same subject matter in different jurisdictions. For instance, in Novatis v. Johnson & Johnson case relating to contact lenses, three different court judgments were passed, based on the same facts. In France, the courts rejected Johnson & Johnson’s argument that Novatis’ invention lacked novelty, and held that the patent was valid and infringed,^[102] and a similar judgment was passed in Netherlands.^[103] In the UK, the High Court held that the patent was invalid on the grounds of insufficient description (but novelty, inventive step and utility requirements were met).^[104] In Germany, the Federal Patent Court held that there was sufficient description, but the Novatis patent was declared invalid on novelty grounds.^[105]

In Astellas v Polpharma 2013, Astellas, a Japanese company was a holder an EPO patent number EP 0 801 067 of 02 September 2015 on a drug constituting a chinuclidine derivative, which was protected in several EU countries, including Germany and Poland. The defendant, Polpharma (based in Poland), produces and sells its medicinal products as well as generic active pharmaceutical ingredients (APIs) worldwide. It furthermore prepares the marketing authorization procedures in the relevant countries. Polpharma advertised and sold substance solifenacin (the API of Astella’s patented chinuclidine derivative) to the German-based generic company HEXAL AG, for HEXAL to use it for the purpose of obtaining marketing authorization (which is a privileged use under German law relating to the Bolar exemption). Astellas brought an Action before German and Polish Courts against Polpharma, for patent infringement. While the Düsseldorf Court of Appeal found that there was no infringement third party supplier of active pharmaceutical ingredient (API) which is to be used for experimental use for the purpose of obtaining marketing authorization,^[106] the Polish Supreme Court held, on the contrary, that third party suppliers of APIs are liable under such circumstances, thus Polpharma infringed Astellas’ patent.^[107]

The diversity of national patent laws among EPO member states creates much uncertainty in the validation of EPO patents in the member states, as well as in the outcome of litigations in different Contracting states relating to the same subject matter. The uncertainty is even more evident in the members of the Union, in areas where the Court of Justice of the European Union has not yet given a preliminary ruling in accordance with Art. 267 of TFEU. The case of the exemption of third suppliers is just one of them.

c) The Possibility of Patent Extension and the absence of Grace Period

The absence of grace period and the availability of supplementary protection certificates (SPCs) are two of the major features of the EPO patent system. As for grace period,^[108] the EPO system does not provide for one, unlike the USA and Japan. However, the EPC provides for certain restricted disclosures, known as non-prejudicial disclosures, which may not destroy the novelty requirement.”^[109]

As for supplementary protection certificates of extension (SPCs), it is worth mentioning that a patent is simply grants the right to exclude, and does not grant the right to commercialize the patented invention. Certain products (especially pharmaceuticals) may require authorization from competent administrative authorities before they are put in circulation, and such authorization may at times take some time. The EPC provides for a patent term of 20 years, but however, allows countries to extend the said duration in accordance with national law.^[110] Unlike the Bolar exemption that seeks to check the undue implicit extension of term of the patent by authorizing rival firms to use the generics of a patented drug for the purpose of satisfying the requirements for a marketing authorization prior to the lapse of the term of the patent,^[111] the SPCs aim at prolonging the life of a patent term, to compensate the patentee for delays incurred during the acquisition of a marketing authorization. “The supplementary protection certificate (SPC) is a right that extends the legal duration of a pharmaceutical patent for the period corresponding to that necessary to obtain marketing authorization, requiring a long and complex administrative procedure to protect human health. The SPC strikes a balance between the proprietor's interest in making use of rights of sufficient duration to cover the research investments and public interest in public control on pharmaceutical products.”^[112]

However, the maximum period of extension is five years, however, a SPC may be issued for a lesser period, depending on the length of the delay (but it must be equal to the length of the delay if it is less than five years.^[113]

III- THE DISPARITY BETWEEN THE EPO AND THE OAPI PATENT SYSTEMS

As clearly demonstrated in the preceding part of this work, the major difference between the EPO and the OAPI patent systems is based on the scope of the effects of their respective patents. While an EPO patent is a bundle of national patents (to be validated or rejected at individual national state level), an OAPI patent, on the contrary, is a unitary one, with effects throughout the 17 member states, without any validation requirement. To understand this disparity, the second part of this work would examine its raison d’être in (A) and (B) below.

A) THE ABSENCE OF PATENTS WITH UNITARY EFFECT AT EPO

Despite the fact that the EPO regional route has advantages over individual national routes of the European countries, the EPO member states could not agree on a patent with unitary effect for several reasons. These reasons range from the very diversity of the contracting states, to their rich patent histories, as seen in the following paragraphs.

1) Diversity of its Member States

For there to be a patent with unitary effect, there must be a reasonable degree of uniformity of harmony in terms of values and standards among the member states of the patent organization concerned. This is because the patent laws of a given country are usually a reflection of its values and standards.

With EPO membership covering several geographical regions (Western, Central, Scandinavian, Mediterranean and Eastern Europe as well as part of Asia (the case of Turkey)), and with most of the states being non-members of the European Union, the adoption and implementation of a unitary patent system would be difficult. Moreover, the EPO membership comprises of countries with different levels of development (both developed and developing countries), and while traditional European countries are Christians, other member states like Turkey and Albania are dominantly Muslims, thus, with completely different values from their Western counterparts. Even among the original founders of the EPO (Germany, France, United Kingdom, Switzerland, Netherlands and Luxemburg), there is still some degree of disharmony among those of purely Catholic traditions and those of Protestant ones.

These values and standards are very important in determining the patent laws of the respective member states, as they underline what is patentable or not, especially in cases of refusing a patent due to grounds of public order and morality. Although there is a high level of uniformity among the EPO member states that are members of the European Union, however, many member states of the EPO are not part of the Union, and as such, lie out of the Union’s harmonization efforts.^[114] With the absence of an EPO patent law, the disparity of the national patent laws of the EPO member states (stemming from their respective standards and values) has made it difficult for one to think of an EPO patent with unitary effect.

2) National Patenting Experience

It is worth mentioning that patents, like other intellectual property rights, are territorial rights. That is, they are directly related to the sovereignty of the state, and states are generally very reluctant to surrender part of their sovereignty to a supranational body. Unlike most OAPI member states that did not have solid patent institutions before acceding to the organization (and authorizing it to play the role of their national patent office), many EPO member states are noted not only for their strong patent institutions, but equally for their long patent history.

The modern German Patent and Trademark Office is over 140 years old (created in 1877),^[115] the French patent system was created during the 1789 revolution. When countries have well established patent institutions and have enjoyed such advantages for so long, it becomes difficult for them to easily cede such privileges.

3) Other Justifications for the Preservation of the National Patent Systems

Another determining factor that justifies the existence of a composite EPO patent is the very fact that some of its traditional members (that are equally the economic giants of Europe) are not only capable of attracting patent application on their own, but are equally the homes for several inventions. In other words, traditional EPO member states like Germany, the United Kingdom, France and Italy individually attract most EPO patent applications, due to the size of their markets.^[116] Moreover, the respective populations of these four countries have high purchasing power, thus they would readily consume a given patented product.

Additionally, Germany, France, the UK and Italy (usually referred to as the Big Four of EU4), are the leading European economic powers, with all of them being members of the G7, G8 and G20.^[117] These four countries are not only the homes of major European industries and research institutions, but they equally European countries which spend the most on research and development.^[118] This makes them patent attractive because foreign inventors seek not only the market,^[119] but equally to prevent the companies and research institutions of these countries from coming up with similar inventions. All these factors, in addition to the fact that these four countries, especially Germany, have several domestic applications (thanks to their interest in research and development), make them contented in maintaining their national patent offices. However, in spite of this conservative attitude, some efforts have been made to attain a unitary patent system outside EPO, thus the case of the European Union Unified Patent system, as seen below.

B) THE EU UNIFIED PATENT TO COMPLEMENT EPO?

In following the vast differences existing among the various members states of EPO, the most EU member states have come together to create a unitary patent system, especially as they do not only have identical values, but have equally created a certain degree of legal uniformity through EU common market laws. The creation of a unitary patent system by some EPO member states does not contradict the provisions of the EPO and its EPC. The EPC in its Art.49 (1) provides for joint designation by stating that: “The group of Contracting States may provide that these States may only be designated jointly, and that the designation of one or some only of such States shall be deemed to constitute the designation of all the States of the group.” Art. 49a equally states: “(1) Nothing in this Convention shall be construed as limiting the right of some or all of the Contracting States to conclude special agreements on any matters concerning European patent applications or European patents which under this Convention are subject to and governed by national law, such as, in particular: (a) an agreement establishing a European patent court common to the Contracting States party to it; (b) an agreement establishing an entity common to the Contracting States party to it to deliver, at the request of national courts or quasi-judicial authorities, opinions on issues of European or harmonized national patent law…” This part would give an overview of the European unitary patent, as well as its Unified Patent Court, and the reasons why it has not yet gone operational.

1) An Overview of the European Unitary Patent System

Created by Regulation (EU) No 1257/2012 of the European Parliament and of The Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of Unitary Patent Protection, the European patent with unitary effect is a product of the European Union, through which an applicant can obtain protection with the same set of claims with respect to all the participating Member States.^[120] It is clearly provided that “A European patent with unitary effect shall have a unitary character. It shall provide uniform protection and shall have equal effect in all the participating Member States. It may only be limited, transferred or revoked, or lapse, in respect of all the participating Member States.”^[121] So, the EU unitary patent is somehow similar to that of OAPI, especially as an applicant cannot designate a participating member state in his application (unlike the case of the EPO), as unitary patent application is for all the participating member states.

So far, all the European Union member states have signed the Unified Patent Court Agreement (communicating their readiness to participate in the unitary patent system) with the exception of Spain and Poland. While the unitary patent will be administered by the EPO, the said patent would exist along-side the EPO patents as well as individual national patents. As a matter of fact, the unitary patent system provides for cooperation with the EPO.^[122] As for the applicable law, unlike the EPO that allows its patents to be treated under varying national laws and giving contradictory results, the unitary patent system provides that “the scope of that right and its limitations (of the unitary patent) shall be uniform in all participating Member States in which the patent has unitary effect”.^[123] In this regard, the system provides for the primacy of Union law,^[124] and hierarchically lists its sources of law as follows: Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012; the Agreement on the Unified Patent Court; the European Patent Convention (EPC); and national law.^[125] The Unified patent court as the major pillar of the European unitary patent system is examined below.

2) The Unified Patent Court (UPC)

The Unified Patent Court (UPC) was created by the Agreement on the Unified Patent Court (UPCA) of 2013, for the purpose of settling disputes relating to European Patents (EPO patents), and European patents with unitary effects, on behalf of the contracting member states.^[126] The Court will have exclusive competence with respect to: actions for actual or threatened infringements of patents and supplementary protection certificates and related defenses, including counterclaims concerning licenses; actions for declarations of non-infringement of patents and supplementary protection certificates; actions for provisional and protective measures and injunctions; actions and counterclaims for revocation of patents and for declaration of invalidity of supplementary protection certificates; actions for damages or compensation derived from the provisional protection conferred by a published European patent application; actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention and other related actions, and any other action that does not fall within the exclusive jurisdiction of the Court shall be handled by national Courts. The UPC will also act as an administrative court, as it will have exclusive competence in respect of actions concerning decisions of the EPO in carrying out the tasks referred to in the EU Regulation No 1257/2012 on the Unitary Patent system.^[127]

With the training centre for judges located in Budapest, the UPC will consist of a decentralized Court of First Instance with local and regional divisions located in the contracting Member States,^[128] while the central division will be based in Paris, but with sections in Munich and London.^[129] The Registry^[130] and the Court of Appeal^[131] will be based in Luxembourg, while the Patent Mediation and Arbitration Centre will be located in Lisbon and Ljubljana.^[132] The procedure is designed in a way that judgments at first instance can be expected within approximately one year of filing the action.^[133] The establishment of the unitary patent and its UPC has proven to be an uphill struggle due to a number of factors, as outlined in the subsequent paragraphs.

3) Questions on the Unified Patent Court (UPC) and the Unitary Patent

The UPC and the unitary patent were supposed to have gone operational since 2017, but it is becoming clear that the said patent system would not see the day in the course of 2018. The following paragraphs examine some questions that have been raised in relation to this patent system, some of which impede the implementation of the unitary patent system.

The very first question that the unified patent system raises is that of its constitutionality in certain jurisdictions like Germany. Dr. Ingve Björn Stjerna, a critic of the Unitary Patent system filed a complaint to the German Federal Constitutional Court (FCC), questioning the constitutionality of the UPC Agreement on grounds that the UPC Agreement constitutes a “ breach of the requirement for a qualified majority arising from Art. 23 (1), sentence 3, in conjunction with Art.79 (2) German Constitution; democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC; the judges of the UPC are not independent nor do they have democratic legitimacy;^[134] breach of the principle of openness towards European law owing to alleged irreconcilability of the UPC with Union law.”^[135]

Following Dr. Stjerna’s complaint, the Office of the Federal President agreed, at the request of the Federal Constitutional Court (FCC), to suspend the UPCA ratification process on 04 April 2017, until the constitutionality question has been settled.^[136] As a result of the suspension, the FCC took measures to have the opinions of the parties and third parties to the proceedings,^[137] without necessarily implying that the complaint has been declared admissible for a decision.^[138] At this juncture, several outcomes are available: the FCC may declare the complaint admissible or inadmissible;^[139] the FCC may as well refer the matter to the CJEU for a preliminary ruling, in line with Art. 267 TFEU (and this would further prolong the delay of Germany’s ratification of the UPCA^[140] ); and if the FCC finally rules that one of Dr. Stjerna’s claims has merit, then this could kill the UPC project in its current form.^[141] With the pending German ratification of the UPCA, it has made it difficult for the unitary patent system to go operational, as Germany is not only a major European economic power, but it equally hosts the European Patent Office which has been mandated to administer the Unitary Patent System,^[142] thus its absence from such a patent system would be a big blow to the system.

Also, the withdrawal of the UK from the European Union (BREXIT) would be another challenge that the unitary patent system would have to handle. On 23 June 2016, the citizens of the United Kingdom voted to decide on the fate of their country within the European community in the United Kingdom and Gibraltar European Union Membership Referendum, during which a majority (51.89 percent) voted in favour of the Kingdom’s exit from the European Union.^[143] The European Union (Withdrawal) Bill 2018 designates 29 March 2019 as “exit day”, precisely at 11.00pm.^[144] Although BREXIT would have serious effects on the European Union at large, its impact on the unitary patent project cannot be underestimated. Since the UK has ratified the UPCA^[145] and reaffirmed its readiness to continue applying EU law after BREXIT, her position has rather complicated matters, because its post BREXIT status would no longer conform to the UPCA. This means that the CPA agreement has to be revised to accommodate a non-EU contracting state (the UK), because it was meant only for EU member states.^[146] If the UPC fails to go operational before the effective BREXIT day (29 March 2019), then such amendment would have to take place before the court sees the day, thus prolonging the delay. Moreover, the UK is to host one of the Central Divisions of the UPC in London.^[147]

Despite all these challenges, the UPC/unitary patent remains the very first European attempt to completely integrate their patent systems, an approach that would not have made any progress within the complex EPO.

C) OAPI AS THE INCARNATION OF UNITARY PATENT FROM BIRTH

From creation in 1977, the OAPI has been the incarnation of a unitary patent system, the very stage that other parts of the world are either still contemplating, or are still to make reasonable efforts to attain. Several reasons account for absolute integration of the OAPI member states in their efforts to better administer their patents, and this section examines the reasons behind such a move.

1) REASONS FOR THE EASY INTEGRATION AT OAPI

The factors justifying the ease with which the OAPI unitary patent was instituted range from historical, sociological, economic and to legal considerations, as seen below.

a) Historical justifications of the OAPI Unitary Patent System

The area covered by the OAPI corresponds to that of the former French equatorial and West African colonies.^[148] The OAPI was an initiative of former French African colonies, but membership was later extended to neighboring countries to these former colonies. Of the seventeen (17) member states, 13 were former French colonies (The Republic of Benin, The Republic of Burkina Faso, The Central African Republic, The Republic of Chad, The Union of Comoros, The Republic of Congo, The Republic of Ivory Coast, The Gabonese Republic, The Republic of Guinea , The Republic of Mali , The Islamic Republic of Mauritania, The Republic of Niger, and The Republic of Senegal). While Cameroon and Togo were not former German colonies, however, they were under French rule after the First and Second World Wars as Mandated territories and later as Trust Territories of the League of Nations and the United Nations, respectively. Equatorial Guinea and Guinea Bissau on their part are neither former French colonies nor were they under France during the mandate and trusteeship era, but their recent membership could be construed from their proximity and economic ties with some OAPI countries (The Republic of Guinea-Bissau acceded in 1998 and The Republic of Equatorial Guinea in 2000).^[149]

Following colonial history, unlike the British colonial policy of indirect rule that was characterized by empowering local leaders to administer their subjects on behalf of the British colonial administration, the French direct rule (assimilation) did not only involve much intervention, but equally involved the administration of the colonies in big blocs. Its entire Central African colonies were administered as French Equatorial Africa (Afrique équatoriale française -AEF), with headquarters in Brazzaville and while those in West Africa were administered as French West Africa (Afrique occidentale française-AOF), with capital in Dakar, with each of them headed by a Governor-General.^[150] This grouping equally reflects the sub-regional economic blocs that emerge in the post-independence era.^[151] It is worth mentioning that France has encouraged such sub-regional groupings in order to still have an influence on its former colonies, and the West supported this French position during the Cold War era, in an attempt to check the spread of Marxist-Leninism. So, it is evident that the OAPI was able to begin with a unitary patent system thanks to the colonial past of most of its member states.

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Fig. C. French colonial Africa

Source: Wikipedia

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Fig. D. OAPI member states

Source: www. managingip.com

b) Socio-legal foundations of the OAPI Unitary Patent System

The OAPI member states are sub-Saharan African countries, especially as Madagascar withdrew at the conceptual stage of the OAPI,^[152] while former French Arab colonies of Algeria, Morocco and Tunisia prefer to have national patent offices. These countries do not only have identical demographic compositions, but their cultures and values are equally similar. This implies that the countries have similar views on what could be patentable or not. Although the Bangui Agreement provides for the revocation of an OAPI patent based on grounds of public order or morality, without such revocation affecting the validity of the patent in other member states, however, so far no country has undertaken such a measure. Also, by virtue of the French colonial administration, these OAPI countries have developed an identical legal culture, similar to that of France, their colonial power.^[153] That is why they practice the civil law system, and not Common Law, thus providing a favorable climate for a common patent policy. Moreover, most of them are French speaking countries, thus solving the translation problem.^[154]

Also, it is worth reiterating the fact that the founding nations of the EPO, unlike their OAPI counterparts have a long patent history (for instance the German Patent Act dates as far back as May 1877).^[155] The OAPI member states gained independence only as from 1960,^[156] and were as such too young to have developed solid patent laws and institutions before the 1977 (year of the creation of the OAPI). Even a country like Comoros that acceded to the Bangui Agreement several decades later (in 2013) did not have a patent legislation.^[157] It is therefore very easy to federate patent management in cases where there are no prior national laws and advanced legal cultures and institutions, which would have posed a similar harmonization challenge which the EU unitary patent is witnessing today.^[158]

c) Economic Justifications of the OAPI unitary patent system

The OAPI patents unitary patents are equally justified by the prospect theory. According to this theory, patents are granted at the early stage of invention, so as to stimulate the commercial exploitation of the invention. The purpose of granting patents at such stages is to ensure that the product would be available for consumers, as inventors would readily invest huge sums to make the product available, when they are sure that they would not face competitors that may limit their ability to charge monopolistic prices.^[159] So, for the OAPI member states to ensure the availability of new and original products in their markets, they must first constitute an attractive market for inventing firms. The OAPI member states are not fit to individually stand as attractive markets, unlike their EPO member states like Germany, France, UK, Spain and Turkey. Each of these mentioned EPO member states has over sixty (60) million inhabitants today, and each had over fifty (50) million inhabitants during the signing of the EPC in 1973.^[160] Moreover, even low populated Switzerland and Austria have high purchasing power, thus being a big market in terms of quality, not quantity. OAPI on its part comprises of not only sparsely populated countries (as only Cameroon and Ivory Coast do have up to 23 million inhabitants),^[161] but it is primarily an association of poor countries. The situation was even more questionable during the creation of the OAPI (in 1977), because at the time Cameroon had a population of about eight (8) million inhabitants, while Ivory Cost had about seven (7) million and countries like Gabon had about half a million.^[162] Inventors would hardly pay to obtain a patent and continue to pay annuities in sparsely populated poor countries, because they would not be able to recoup the huge sums invested in making the product, irrespective of the assured exclusivity. Conscious of the limitations of their individual markets, and especially considering the low purchasing power of their citizens, the OAPI member states therefore decided to federate their “patent market” in order to make it sizable and thus attract foreign patent applications. Also, in addition to low population and poverty, the OAPI member states do not pose any threat to foreign patents, as they fall among the least industrialized countries of the world. As such, there is little fear of counterfeiting a patented product in these countries, because they have limited technology.^[163]

Cooperation among the OAPI member states (by virtue of their colonial heritage and geography) in domains not directly related to intellectual property has further enhanced their unitary patent system. For instance, in addition to the inherited French legal culture, all the OAPI member are equally the only members of the Organization for the Harmonization of Business Law in Africa (popularly known as by its French acronym, OHADA).^[164] This cooperation has provided homogenous business climate, thus avoiding contradictory laws that may question the unitary patent system. Part III of this work examines the challenges faced by the OAPI unitary system.

IV- AN EVALUATION OF THE OAPI PATENT SYSTEM

Pending the entry into force of the EU unitary patent, OAPI and the GCCPO are noted for being the world’s only regional intellectual property organizations to have successfully implemented the unitary patent system. And unlike the EU unitary patent system that would coexist alongside EPO and national patents, the particularity of the OAPI system is its exclusivity. That is, it does not provide for any national patent systems, as the OAPI remains a national patent office to all its member states.^[165] After four decades of existence of the OAPI, this part evaluates the actual challenges faced by OAPI patent system. Paragraph (A) dwells on the limitations of the OAPI patent system, while (B) examines the perspectives.

A- LIMITATIONS INHERENT IN THE OAPI PATENT SYSTEM

The limitations of the OAPI patent system could be examined from the point of view of the organization’s desired goals, the system’s functionality and exclusivity.

1) The OAPI and its desired goals

It is worth reiterating that the goal of any patent system is to stimulate and promote technological progress through sequential innovations stemming from the sufficiently disclosed patented invention, as persons with ordinary skills in the art would be able to make or use the said invention after the term of the patent. The TRIPs Agreement (which is binding to all the OAPI member states) provides: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”^[166] And “Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.”^[167]

Development has implicitly been one of OAPI’s main objectives in practice (without being stated in the “Constitution” of the Organization), however, the Bangui Agreement was even revised in 1999, to explicitly mention development as one of the major goals of the organization. The Agreement provides: “The African Intellectual Property Organization created by the Bangui Agreement of March 2, 1977, is responsible for (…) promoting the economic development of member States, notably by means of effective protection of intellectual property and related rights (…).”^[168] If OAPI has codified development as one of its major goals, the question then is: to what extent has the OAPI contributed in the development of its member states? In other words, how has the disclosed information in patents helped in the reproduction of the said invention upon the expiration of the patent? Also, to what extent has the quest for gaining a limited monopoly motivated citizens from OAPI member states to invent?

Despite several decades of OAPI’s existence, the OAPI member states remain poor countries, and most of them fall among the least developed countries of the planet.^[169] The OAPI member states, despite the available technical information from expired patents, do not have both the human resources and technology to enable them make the previously patented inventions. These poor countries of the OAPI do not have enough means to sufficiently invest in research and development, and moreover, they have many other challenges, usually of socio-political nature.^[170] These crises do not only deprive the states of the funds that would have been allocated for research and development, but they equally render these states less attractive for foreign investors who would promoted technology transfer for the benefit of such territories. Also, if many patent applications in the west are filed by academic and research institutions, the OAPI countries do not have such institutions. As a matter of fact, none of these OAPI member states has a university that falls among the best 45 universities in Africa.^[171] With all these limitations, it becomes difficult for the OAPI member states to make effective use of the patent system.

Also, globalization may not favor the industrialization of these poor countries, unless their firms become competitive enough to face their Western counterparts.^[172] In a globalised world of today, it becomes cheaper and easier for these OAPI countries to import manufactured goods from other parts of the world, rather than striving to produce the goods in question, as they may not even be fit to compete with their Western counterparts (even in their own home markets). This is because, apart from the much sums needed for research and development, they need huge capital to build and equip factories as well as hire skilled labour, without being sure of recouping invested sums due to market uncertainty. The fear of market failure could be accounted for by two reasons: firstly, it would take time to convince to consumers to abandon their old habits and instead consume home-made goods, especially as home companies may not be reputed for manufacturing quality goods; secondly, rival firms to the supposed home industries are usually powerful multinationals that are enjoying economies of scale, so they can sell their products at lower prices. Thus, the home industries may not compete with these multinationals, especially as the formers would need to recoup their investment, or at least, break even. The situation is even more complicated, as no protectionism would be tolerated, due to the WTO principle of “national treatment”.^[173]

It is due to the absence of this incentive to innovate that the OAPI patents applications are mostly PCT international applications,^[174] with the applicants seeking at least to secure a sizable market,^[175] rather than being motivated by the desire to prevent patent infringement. Some questionable traits of the OAPI patent system are the absence of national patent offices and a centralized patent court, as seen below.

2) Problems relating to the absence of national patent offices and a patent court

As seen above, the OAPI serves as a national patent office to all its member states, and there is no possibility to designate a given member state as the only country that protection is desired.^[176] This exclusion or inexistence of individual national patent offices may not pose a problem to viable international applicants, but could be a major challenge to local SMEs, that may not have the means and interest in protecting their inventions in all the OAPI member states. For instance, if a Cameroonian inventor would like to patent his invention only in Cameroon, he is simply deprived from doing so. He is obliged to protect his invention in all the OAPI member states, including distant ones like the Comoros islands, irrespective of the fact that the inventor has no dreams of investing in that country, and even when there is no risk of patent infringement in such a country. It is true that an OAPI regional patent application is cheaper than having to file applications in the individual member states, but would be too expensive for an inventor who is interested in protecting his invention in just one or two states.

This situation may at times lead to injustice because the patentee would be obliged to pay annuities for the protection of the invention in countries whose socio-political situation makes it impossible for the patentee to exploit the invention in such countries. For instance, during the Ivorian civil war of 2002-2007 and the resulting insecurity that followed the post war years, OAPI patents equally covered the country, irrespective of the fact that most patentees would not exploit their inventions in Ivory Coast at that particular time, neither were Ivorian firms capable of infringing patents, as almost all economic activities were halted at that time. It is to avoid this injustice that the European Unitary Patent would exist alongside national patents and the EPO patents, referred to as “classic” European patents and national patents.^[177]

Also, the absence of an OAPI judicial organ poses a serious problem. If European countries have found it necessary to have a specialized court (the UPC) to handle patent disputes, the OAPI has rather attributed this competence to national courts.^[178] Art. 44 of Annex I to the Bangui Agreement provides: “(1)The actions referred to in Article 43 (invalidity or forfeiture/revocation) above and all disputes relating to patent ownership shall be brought before the civil courts. (2) If the action is simultaneously brought against the owner of the patent and one or more limited licensees, it shall be brought before the court sitting in the established or elected domicile of the said owner. (3) The matter shall be examined and judged in the manner prescribed for summary proceedings. If necessary, it shall be communicated to the Office of the Public Prosecutor.”^[179] Also, if invalidity or revocation actions are to be heard by local civil courts, the Agreement equally gives local criminal courts competence on infringement related actions, by providing that: “Criminal action (…) may only be brought by the Office of the Public Prosecutor on a complaint by the injured party.”^[180] However, the Criminal Court hearing a case of infringement would exceptionally be competent to rule validity matters, if invalidity has been raised by a defendant as a defense.^[181]

Although there are no advanced and contradictory legal cultures among the OAPI member states that would have given way for inconsistent judgments on similar facts ( as it is the case with the EPO member states), however, surrendering both validity and infringement patent proceedings to national courts really poses a problem, especially for the following reasons. Firstly, the judiciary of most of these countries is not really independent from the influence of the executive, like in most developing countries. In Cameroon for instance, the appointment, promotion and dismissal of magistrates is done by the Head of State, who is the Head of the High Judicial Council.^[182] It is therefore very difficult to draw a line between the executive and the judiciary. Moreover, being developing countries, the judges, are not well paid, so it may at times be difficult for them to resist corruption and render fair judgments. Secondly, the judges presiding over the civil or criminal cases do not have technical or scientific background, thus, they may not have the ability to really appreciate scientific facts during patent litigations.^[183] Despite the fact that some prominent European legal minds strongly criticize the recruitment of patent judges with scientific background,^[184] nevertheless, the European Unitary Patent system has opted for scientific judges for better appreciation of facts. Thirdly, the fact the Bangui Agreement fails to require the designation of specific national courts as competent courts for patent litigation equally poses a problem. It means any court in a given OAPI member state is competent to hear patent validity and infringement matters. Considering that these courts have several civil and criminal matters to hear, filing a patent suit before courts that are only used to civil and criminal matters would rather “surprise” such courts, as patent s litigation remains rare on the OAPI territory.

It is to avoid this “surprise” factor that the European countries have expressly designated specific national courts to have competence on intellectual property rights with unitary effect. For example, the EU Trademark Regulation provides: “(1) The Member States shall designate in their territories as limited a number as possible of national courts and tribunals of first and second instance, which shall perform the functions assigned to them by this Regulation. (2) Any change made in the number, names or territorial jurisdiction of the courts included in the list of EU trade mark courts communicated by a Member State to the Commission in accordance with Article 95(2) of Regulation (EC) No 207/2009 shall be notified without delay by the Member State concerned to the Commission. (3) The information referred to in paragraph 2 shall be notified by the Commission to the Member States and published in the Official Journal of the European Union.”^[185] It is therefore evident that the failure of the OAPI to require such designation is not in conformity with the modern trend of industrial property integration.

It is worth mentioning that OAPI has made significant effort to train magistrates and other interested persons by introducing the Master 2 in Intellectual Property program at the Denis Ekani Academy (based at the OAPI headquarters in Yaounde). This academic program is funded by WIPO and the Japanese government, in collaboration with the University of Yaounde II, offers generous scholarship to the said class of people, especially magistrates, so as to render them apt in handling intellectual property matters.^[186]

3) The question of formality-based examination

The Bangui Agreement laid down the conditions for patentability at the OAPI, by providing that: “An invention that is new, involves an inventive step and is industrially applicable may be the subject of an invention patent (hereinafter called “patent”)”.^[187] The Agreement equally provides that patent application shall undergo examination to ensure that the invention mentioned in the application is not excluded from patentability,^[188] and the claim or claims do not go beyond the contents of the detailed specification.^[189] Search is equally conducted to ensure that at the time of application, the invention is new, involves an inventive step and is useful, and the Administrative Council decides on the extent to which these conditions could be met.^[190] But in examining these conditions, as earlier mentioned, the OAPI does not practice substantive patent examination.^[191] Its formality examination is not enough to determine the novelty, non-obviousness and the utility of an invention. This makes the OAPI to be very quick in issuing patents, and Medecins Sans Frontieres has confirmed several cases where the OAPI quickly grants patents for a given set of applications, while the EPO, upon substantive examination of those very applications, refuses to grant patents.^[192] Although patents are territorial rights, and the grant or refusal of patents by one territory does not influence the decision of another jurisdiction, however, the quick grant of patents without substantive examination may result in the misattribution of patents. Such grants would be at the detriment of the society, as it would be charged high prices for the said product throughout the term of the patent. Although the TRIPs Agreement and the Doha Declaration permit developing countries to shape their intellectual property policies in a manner that reflects their development goals, nevertheless, the exclusion of substantive examination may not fall among development related policies.

Moreover, insufficient disclosure which is one of the grounds for refusing or invalidating an OAPI patent^[193] cannot be easily determined by mere formal examination, which is usually done by people without technical background. It is only during the substantive examination that it would be determined if, based on the patent specifications, a person with ordinary skill in the art would be able to make or use the invention. If patents are granted without such expert determination, it would certainly give room for cases where patents would be granted to inventions that are not sufficiently disclosed, thus, such inventions may not be useful for the patentee’s future competitors after the expiration of the patent. In that case, the public would have borne an unnecessary burden in the form of high prices, and such burden would continue be borne even after the expiration of the patent, because the rival firms would not be able to make and use the invention, due to the absence of enabling disclosure.^[194]

B- PERSPECTIVES

The inability of the OAPI member states to effectively make use of the patent system as seen above, stems from limitations imposed by the states themselves. To redress the situation, this part would first dwell on recommended efforts for member states, before dwelling on those suitable for the OAPI itself.

1) Efforts required from OAPI member states

Patents on their own would provide incentive to innovate, as firms would recoup the huge sums invested and make profit through monopolistic pricing during the term of the patent, however, this would be true only if the firms has the initial capital and there exist a favorable climate for business and research and development. The states have to facilitate access to credit for SMEs, as well as award prizes to innovators, as an additional motivation. Tax incentives may equally be used to encourage the effective utilization of the patent system.

a) Establishment of a conducive business climate

The very first contribution of the OAPI member states in promoting technological progress is by stabilizing the socio-political climate, which is an indispensible condition for technological growth. This can be done through the actual implementation of democracy. It is true that since 1990, following the collapse of the bipolar world, African countries introduced multipartism politics, which is one of the major characteristics of democracy, however, these countries still have to implement the other important aspects of democracy, including decentralization, and most importantly, the alternation of power.^[195] When power changes hands regularly through democratic means, a political culture would be built on such values. And as seen in the era of military rule in Nigeria, Burkina Faso and the Central African Republic, a coup d’Etat simply nurses another coup d’Etat, thus the reign of instability. When potential leaders know that they can democratically come to power, they would have no reason to start an armed rebellion. Unfortunately, power hardly alternates in most OAPI countries.

b) Creation of research institutions

It is equally the responsibility of the member states to establishment research centers. Although some states have already made reasonable efforts in this area especially in relation to agriculture,^[196] some effort is still needed. In their quest for efficiency, some OAPI countries have partitioned competence relating to innovation among several ministerial departments, thus making it difficult for these departments to each have a well coordinated innovation policy.^[197] Considering the huge sums required in establishing a well-equipped research center, these OAPI countries would be more successful if they collectively establish a few research centers.

c) Provision of additional incentives for innovation

The states may equally award prizes to inventors, in an effort to motivate them. However, prizes have been argued to be a poor reward factor, especially if the prize is associated with huge financial sums. This is because such prices would lead to misallocation of resources, the money associated to them is obtained from taxation, and it would be difficult to prove that all the taxed citizens would have loved to consume the invention for which the inventor is awarded a prize. Thus this may lead to misallocation of resources. Moreover, the inventor would be entitled to a patent, which in itself would be a reasonable reward, as the inventor would recoup money invested and make huge profits during the term of the patent. But considering that a patent is neither an authorization to commercialize, nor is it a guarantee for a monopoly (as the invention may have substitutes or the market may simply fail), it becomes difficult to conclude that the patent is already a reward to the inventor. In this regard, the prize awarded must not necessarily be associated to a huge sum of money. It could simply be for symbolic reasons, comprising of an acknowledgement of the inventor’s hard work and according him an honorific distinction. While the inventor’s morale would be boosted during such decoration ceremonies, it would motivate other researchers who would like to acquire such pride, as well as provide the opportunity to sensitize the public on research and patents.

d) Innovation oriented policies and public sensitization

Also, the member states have to draft policies that prioritize industrialization. With most OAPI member state economies being based on agriculture and the exploitation of natural resources,^[198] little attention is paid to industrialization. Some of these countries have fixed specific timeframes during which they would become “emerging countries”, but yet specify that such emergence would be agro-based.^[199] It is true that the English agrarian and industrial revolutions of the 18th and 19th Centuries were interrelated, however, when one considers the emerging economies of China, Brazil, South Korea and South Africa, it becomes doubtful if the strategy laid down by these sub-Saharan OAPI member states would enable them attain economic emergence as known by these listed countries. In a world that is characterized by the triumph of services and the manufacture and assembly of finished goods, it becomes questionable if an economy that is based on the exportation of raw materials and agro products could easily attain the rank of an emerging economy, especially taking into account uncertainties surrounding the prices of such products. If national policies are not geared towards the establishment of factories and assembly plants, the sufficiently disclosed information on patents would serve little or no purpose. The prioritization of industrialization does not mean that these countries should abandon the exploitation of raw materials and agriculture, on the contrary, they both domains could be tackled together. In other words, the diversification of their economies. A typical example of a diversified developing economy is that of the United Arab Emirates, which apart from its petroleum extraction, it is equally every active in the industrial sector. Diversification would render these economies more resilient to economic crisis because the fall of one sector would be mitigated by the unaffected sector.

Also, the public has limited awareness on patent matters. Most citizens of the OAPI member states do not know the goals of a patent system, neither do they know that an invention does not have to be sophisticated before qualifying for a patent, provided it is new, non-obvious and useful. This creates a situation where some SMEs never patent their inventions, or at times they disclose them through sales before learning about patents, thus disqualifying their inventions from patentability beforehand. Moreover, new SMEs may have limited knowledge about inventions that are already in the public domain. If they are not regularly informed about such products, they may not be aware of the fact that they can freely use such products. It is evident that the OAPI already offers a Masters program in Intellectual property, and organizes training courses for interested persons, however, the OAPI should intensify its public education so as to create public awareness. But due to the centralized structure of OAPI, its activities are largely concentrated at its headquarters in Yaounde, the organization has delegated this competence to the national administration of the in charge of industrial property in the individual member states, to whom all OAPI publications are addressed.^[200] In Cameroon for instance, the Ministry of Mines, Industry and Technological Development (MINMINTD) is responsible for promoting industrial property rights and informing the public on the status of patented inventions.^[201] However, the impact of the remains less felt and much is still to be done.

2) Recommendations for OAPI

In order to reflect the modern international standards, the OAPI may introduce substantive examination of patent applications, , revise its provision pertaining to the competence of national courts and reinforce cooperation with other international bodies. These recommendations well elaborated in the following paragraphs.

a) Introduction of substantive examination

There are equally efforts required from the OAPI to make the institution effectively play its assigned role, especially as formality-based examination raises a lot of uncertainties.^[202] Firstly, it is worth considering the implementation of substantive examination, like any other regional patent grouping. It is worth mentioning that the ARIPO (African Regional Intellectual Property Organization) does both formal and substantive patent examinations. It is true that substantive examination is expensive, but the patent applicants pay for it. Moreover, it is not evident that ARIPO is technologically more sophisticated than OAPI to enable it practice substantive examination. The GCCPO which is not only a young regional organization, but equally having the least number of states (all of which are developing countries) equally does both formal and substantive examination,^[203] thus leaving OAPI as the world’s only regional patent organization that does not practice substantive examination. However, the decision to introduce substantive examination falls within the jurisdiction of the Administrative Council of OAPI, and not that of the Secretary General.^[204]

b) Revisiting the competence of national courts

Secondly, considering that patent litigation is rare in OAPI territories,^[205] it would not be appropriate for the organization to have a standby patent court with a full-time staff. That would constitute a waste of resources, especially as the OAPI issues an average of just 459 patents a year,^[206] and thus, patent litigation is usually almost inexistent. The absence of a reliable patent court could be the reason behind the rarity of patent litigations in OAPI territories, as patentees may prefer alternative dispute resolution mechanisms to litigating in a court with little credibility.^[207] Considering the limited number of patents granted by the OAPI and the rarity of cases of infringement, it would be irrational for the Organization to begin with a standby patent court, like the would be European Unified Patent Court. The OAPI may amend its statute to require member states to designate a limited number of courts to have competence on patent related matters, a provision that would be similar to that on the unitary trademark rights of the European Union Intellectual Property Office (EUIPO).^[208] This would enable the judges assigned to the designated courts to be sufficiently trained in patent law, so as to better exercise their functions whenever a patent matter arises.

c) Reinforcing international cooperation

In a world that is characterized by perpetual development, it is in the interest for the OAPI and its member states for the organization to involve in active cooperation with its counterparts with whom it may benefit from the exchange of good practices. So far OAPI has attempted to cooperate only with the African Regional Intellectual Property Organization (ARIPO),^[209] especially in their attempt to defend the existence of their existence in the advent of the Pan-African Intellectual Property Organization (PAIPO).^[210] But with the ARIPO and the OAPI having parallel patent systems, such cooperation relating to systemic harmonization would be doubtful.^[211] However, cooperation relating to documentation and technical assistance would likely be successful and beneficial for OAPI, if such cooperation is not limited only to African groupings. It is true that the OAPI cooperates with the WIPO,^[212] and the EPO and other organizations as well as some national patent offices are cited as OAPI’s development partners, however, cooperation between OAPI and most of these bodies remains low. With the rich experience of EPO, it would be beneficial for OAPI to conclude a cooperation agreement with the former,^[213] especially when the EPO starts administering the European unitary patents.^[214] Cooperation with the GCCPO would have been another opportunity for OAPI to benefit from the exchange of good practices, as the both organizations do not only compose of developing countries, but they equally share one major thing in common-they are the world’s only unitary patent systems for the moment. However, due to the youthfulness of the GCCPO (operational only since 2002) as well as its limitation in space (comprising of only six developing countries), OAPI may not find cooperation with such an organization significantly beneficial.

V- CONCLUSION

In examining the Regional intellectual property integration in developed and developing countries: the cases of the European Patent Office (EPO) and the African Intellectual Property Organization (OAPI) patent systems, this work has introduced the current international and regional trends of intellectual property integration, before dwelling on the EPO and the OAPI as two classical examples of approaches from the Northern and Southern hemispheres. While the OAPI is a unified patent system from birth, the EPO on its part has always been a decentralized patent system, and the latter, due to its realities as seen above, does not strive to adopt a unified system. However, the EPO contracting states with European Union membership want to adopt a unitary patent system.

Despite the shortcomings of the OAPI and recommendations outlined above in the later parts of this work, there are still some other facts concerning OAPI that merit some attention. Firstly, the adoption of a unified patent system should not be taken to mean a high degree of cooperation existing among its member states. Unlike the would be European patent with unitary effect whose member states are all members of the European Union,^[215] the member states of the OAPI mostly have little in common, as they belong to different economic blocs, and integration is at times limited even within the same economic bloc. For instance, in Central Africa, Cameroon, Gabon and Equatorial Guinea belong to the of Central African Economic and Monetary Community (CEMAC), and they have a common currency, but there is still some limitation in terms of the freedom of movement of persons, capital and labor. In these countries, and citizens are still required to obtain visas before crossing the borders of some countries of the CEMAC community. And even though all the member states of both CEMAC and UEMOA are parties to the Bangui Agreement, and they both have a common history and use the Francs CFA currency, there is little economic cooperation between the two blocs. So if the European Union has harmonized intellectual property law in an attempt to remove any obstacles that may restrict the four freedoms (persons, capital, goods and labor) of the common market,^[216] the OAPI did not adopt a unitary patent system for the purpose of attaining such freedoms, neither does it intend to use this system to integrate the existing blocs of its respective member states. The table below summarizes the comparative analysis the OAPI and the EPO patent systems.

Abbildung in dieser Leseprobe nicht enthalten

Table 1: A comparison between the OAPI and the EPO regional patent systems

All in all, despite the differences between the OAPI and the EPO as examined in this work, the two regional organizations reflect attempts by both developed and developing countries to fit themselves in the global intellectual property order, while taking into account their respective realities.

LIST OF WORKS CITED

Monographies and Articles

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- UNESCO, General History of Africa, VII, Africa under colonial domination 1800-1935, Ed Boahen, Paris, 1985

International Treaties

- The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994

- The Agreement Revising the Bangui Agreement of March 2, 1977, on the Creation of an African Intellectual Property Organization, Bangui, 1999

- The Bangui Agreement Relating to the Creation of an African Intellectual Property Organization, Constituting a Revision of the Agreement Relating to the Creation of an African and Malagasy Office of Industrial Property, Bangui, 1977

- The Convention Establishing the World Intellectual Property Organization, Stockholm, 1967

- The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958

- The European Patent Convention, Munich, 1973

- The Harare Protocol on Patents and Industrial Designs, Harare, 2018

- The Paris Convention on the Protection of Industrial Property, 1883

- The Patent Cooperation Treaty, Washington, 1970

- The Statute of the Pan-African Intellectual Property Organization, Adopted by the Twenty Sixth Ordinary Session of the Assembly, Addis Ababa, 2016

European Union Legislation and Preparatory Acts

- Directive (EU) 2016/943 of the European Parliament and of the Council Of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure

- Regulation (EU) 2017/1001 of The European Parliament and of The Council of 14 June 2017 on the European Union trade mark

- Regulation (EU) No 1257/2012 of the European Parliament and of The Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of Unitary Patent Protection

- The Agreement on the Unified Patent Court, 2013

- The German Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz – BVerfGG), 1951

- The Treaty of the Functioning of the European Union (TFEU), Maastricht, 1992

Cases

- Düsseldorf Higher Court Order, 1-2 U 68/12 of 15 Dec. 2013 on Polpharma v. Astellas

- Graham v. John Deere Co., 383 U.S. 1 (1966)

- ICSID (International Center for the Settlement of Investment Disputes), in an arbitration case (case No. ARB/11/11) AHS Niger and Menzies Middle East and Africa S.A. v. Republic of Niger, of July 15, 2013

- Microsoft v. European Commission, 2007

- Novatis v. Johnson & Johnson, 2010

- The WTO Panel Report number WT/DS114/R, on a complaint filed by the European Communities and their member states against Canada (27 March 2000), pertaining to the Canadian Bolar and stockpiling exemptions, available at https://www.wto.org/english/tratop_e/dispu_e/7428d.pdf, retrieved on 09 August 2018

^[1] See Machlup, Fritz “An Economic Review of the Patent System”, Subcommittee on Patents, Trademarks and Copyrights of the Committee on the Judiciary of the US Senate, Study No. 15, 1958, p.33

^[2] See the European Patent Convention, Art. 63(1). See also the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994, Art. 33.

^[3] See TRIPS, Art.30

^[4] See WTO Panel Report number WT/DS114/R, on European Communities and their Member States v. Canada (27 March 2000), page 142. 1142pertaining to the Canadian Bolar and stockpiling exemptions, available at https://www.wto.org/english/tratop_e/dispu_e/7428d.pdf, retrieved on 09 August 2018.

^[5] See Machlup, (n 1) 2

^[6] Ibid, 32

^[7] See Duffy, John F. “Rethinking the Prospect Theory of Patents” The University of Chicago Law Review, Vol. 71 No. 2, 440

^[8] Graham v. John Deere Co., 383 U.S. 1 (1966), the US Supreme Court held that: “In carrying out the constitutional command of Art. I, § 8, that a patent system "promote the Progress of . . . useful Arts," the Congress established the two statutory requirements of novelty and utility in the Patent Act of 1793. In Section 103 of the 1952 Patent Act, Congress added the statutory nonobvious subject matter requirement, originally expounded in Hotchkis. (…) This section permits a more practical test of patentability. The determination of non-obviousness is made after establishing the scope and content of prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art.”

^[9] See TRIPS, Art. 29(1).

^[10] See TRIPS, Art. 39. However, trade secrets do not serve as a strong alternative to patents, neither would they deprive the society of technical information forever, because such information can be obtained through the reversed engineering of lawfully acquired products and independent creations. See Art. 3 of Directive (EU) 2016/943 of the European Parliament and of the Council Of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. However, firms with sophisticated technology may be successful in keeping certain vital technical information secret, thus hindering competition. See Microsoft v. European Commission, 2007.

^[11] See WIPO, “Patent Highlights” 2017, p. 39, available at: http://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2017-chapter2.pdf, retrieved on 15 August 2018.

^[12] See the Paris Convention on the Protection of Industrial Property, 1883.

^[13] According to the Paris Convention, a country that is a member of the Paris Union is required to accord the same treatment that is reserved for its nationals to nationals of other members of the Union, in matters relating to industrial property. In other words, it is the principle of non-discrimination. See id, Art. 2

^[14] Although the Paris Convention does not expressly mention the principle of territoriality of patents, it however implies so in its Art. 4bis, which is talks about the independence of patents obtained for the same invention in different countries. That is, the granting or refusal or the outcome of a patent litigation in one jurisdiction (be it a member of the Union or not) shall not influence the decision of another jurisdiction, even when the invention, actors and circumstances remain the same.

^[15] See the Paris Convention, Art. 4

^[16] Ibid

^[17] Ibid, Art. 4ter

^[18] Ibid, Art. 5

^[19] Membership as of April 2018

^[20] See the Patent Cooperation Treaty (PCT), Washington, 1970, Art. 3

^[21] See WIPO, “WIPO Facts and Figures 2017”, available at: http://www.wipo.int/edocs/infogdocs/en/ipfactsandfigures2017/, retrieved on 13 August 2018.

^[22] Ibid

^[23] See TRIPS, Art. 4

^[24] The TRIPS has “teeth”. That is, unlike the other multilateral agreements, violation of any provision of TRIPS may lead to is actionable before the WTO, in accordance with Articles XXII and XXIII of GATT 1947, and the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes. For example, see the WTO Panel Report number WT/DS114/R, on the European Communities and their member states v. Canada.

^[25] See the Convention Establishing the World Intellectual Property Organization, Stockholm, 1967 and as amended on September in 1979, Art. 3

^[26] See WIPO, “WIPO-Administered treaties,” available at: http://www.wipo.int/treaties/en/, retrieved on 15 August 2018. However, these treaties do not include TRIPS, as trips are administered by the World Trade Organization (WTO).

^[27] Nevertheless, the PCT route is advantageous in that it increases the chances of one obtaining patents at the patent offices of the designated PCT contracting states, the WIPO-designated International Search Authority (ISA) goes through the application by conducting an international search (see Art 15 & 16 PCT), and the applicant has the possibility to amend the claims (Art. 19 EPC), and would rely on the opinion of the ISA to decide on whether or not he/she should continue with the application. The application may as well request for a preliminary examination, which would be conducted by a designated International Preliminary Examination Authority (IPEA), with the applicant still having the opportunity to take his/her decision based on the opinion of the authority; see Art.31-42 PCT. The application enters the national phase with the opinions of the ISA and may be IPEA, and as such, the designated national patent office cannot reject a PCT application on formal grounds.

^[28] See WIPO list of regional patent offices at: http://www.wipo.int/patents/en/topics/worksharing/regional-patentoffices.html, retrieved of 8th May 2018

^[29] The EAPO was created by the Eurasian Patent Convention of 12 August 1995. With headquarters in Moscow (Russia), EAPO has as member states, Russian Federation, Republic of Kazakhstan, Republic of Azerbaijan, Kyrgyz Republic, Republic of Moldova and Republic of Armenia. See EAPO member states as indicated on the organization’s official website, https://www.eapo.org/en/members.html, retrieved on 09 August 2018.

^[30] The GCC Patent Office was created in 1992, with headquarters in Riyadh, Saudi Arabia, within the Secretariat General of the Gulf Cooperation Council (GCC). Its member states Kingdom of Saudi Arabia, Qatar, Kuwait, United Arab Emirates, Sultanate of Oman and Bahrain. See member states as listed on GCCPO website at: https://www.gccpo.org/BoardOfDirectors/GulfSystemsEn.aspx, retrieved on 09 August 2018.

^[31] The GCC Patent Office is more limited in space and time because its unitary patent is valid only in six countries (while seventeen countries for the OAPI), and unlike the OAPI that was created in 1977, the GCC Patent Office was created in 1992, became operational in 1998, and granted the first patent in 2002. See details at: https://en.wikipedia.org/wiki/GCC_Patent_Office, retrieved on 09 August 2018.

^[32] The other is ARIPO (African Regional Intellectual Property Organization), with headquarters in Harare (Zimbabwe). ARIPO comprises of 19 member states, all of which are English speaking nations, including: Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.

^[33] The OAPI, “The history of OAPI” available at: http://www.oapi.int/index.php/fr/oapi/historique. The revision came as a result of the withdrawal of the Malagasy Republic from the OAMPI, coupled with the need to expand coverage to other categories of IP ( such as trademarks, industrial designs and geographical indications, as the OAMPI was only concerned with patents)

^[34] Such as TRIPS, especially as the member states are all state parties to TRIPs.

^[35] See The OAPI, The history of OAPI op. cit. See also the Bangui Agreement on the Creation of an African Intellectual Property Organization, Bangui, 1977 (as amended in 1999), Art 2.

^[36] Ibid, Art 40.

^[37] See Fig. A, 10

^[38] See details at: http://www.oapi.int/index.php/fr/oapi/etats-membres, retrieved on 10th May 2018

^[39] Figures obtained by summing up the most recent census conducted in each of the member states, mostly in 2016.

^[40] See the Bangui Agreement, Art 22(2)

^[41] Ibid, Art.23

^[42] Ibid, Art 25

^[43] Ibid, Art 2(2)&(3)

^[44] Ibid, Annex I-X

^[45] These figures have been obtained by summing up the total number of patents issued by OAPI, as illustrated by the OAPI Official Bulletin on patents for 2013, 2014, 2015, 2016, and 2017, available at: http://www.oapi.int/Itccjn mmvmbmkvvmgobkbphjnphjg[g g=t f=fmf=fmn , b n;h;bnn.n.n/ng/g;;lkc/ fmrkfjfickklld;.;v’v /b/vgvv/v/v/V/vv/v /v//////x/c/cnndex.php/fr/brevets, retrieved on 15 August 2018.

^[46] See the Bangui Agreement op.cit, Art. 27

^[47] Ibid, Art 28

^[48] Ibid

^[49] Ibid, Art. 31

^[50] Ibid, Art 32

^[51] Ibid, Art 29. The Council may in specific occasions, draw up the appropriate regulations deriving from the implementation of some six Treaties or Agreements (to which OAPI is a party, including: Agreement and to the Patent Cooperation Treaty, the Trademark Registration Treaty, the Hague Agreement Concerning the International Deposit of Industrial Designs, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, the International Convention for the Protection of New Varieties of Plants and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure) with a view to their application on their respective national territories. See Art. 30 of the Bangui Agreement (as revised)

^[52] The Bangui Agreement, Articles 33 and 19

^[53] Ibid

^[54] See 50-53

^[55] The Bangui Agreement, Art. 34

^[56] Ibid, Art. 35

^[57] Regulation No.56/22 of the Administrative Council of OAPI of 7 December 2016, Art 1 available at: http://www.oapi.int/index.php/en/reglement-portant-creation-et-organisation-du-centre-darbitrage-et-de-mediation?format=pdf , retrieved on 26 May 2018

^[58] Ibid, Art 2

^[59] Ibid

^[60] Ibid, Art 21

^[61] See the call for applications for the recruitment of mediators and referees at: http://www.oapi.int/index.php/en/appel-a-candidature , retrieved on 26 May 2018

^[62] See 50-53

^[63] See the Bangui Agreement, Art 2(3)&(4).

^[64] Ibid, Art 18

^[65] See TRIPS, Art. 27(2)

^[66] See the Bangui Agreement, Arts. 14 and 19 of Annex I.

^[67] See 16-17

^[68] For inventors in academic institutions, it has been admitted that the ability to file a patent application prior to disclosure usually conflicts the need to present or publish research for review, especially as the inventor mat speak in conferences. It therefore becomes difficult to avoid disclosure prior to publication. It is in an effort to give such academics and other inventors enough time for patent application that some countries’ patent laws provide for grace period. See Foley and Lander LLP, “A Grace Period for Patents: Could it help European Universities Innovate?” available at: http://www.insme.org/files/grace-period-report retrieved on 26 May 2018.

^[69] WIPO, “Certain Aspects Of National/Regional Patent Laws”, available at: http://www.wipo.int/export/sites/www/scp/en/national_laws/grace_period.pdf , retrieved on 25 May 2018.

^[70] Ibid. Also see Aylen, David “Russian Federation : Patent Practice In The Russian And Eurasian Patent Offices,” 29 June 2012, available at: http://www.mondaq.com/russianfederation/x/184208/Patent/Patent+Practice+In+The+Russian+And+Eurasian+Patent+Offices, retrieved on 25 May 2018

^[71] See WIPO, “Certain Aspects Of National/Regional Patent Laws” supra

^[72] See the European Patent Convention (EPC), Art 55

^[73] See 28

^[74] See 28-29

^[75] See the Bangui Agreement, Art 6 of Annex I.

^[76] This is because when a PCT application enters the national phase, it can no longer be rejected on formal grounds. But it can be rejected substantive grounds, but for the moment the OAPI does not do substantive examination

^[77] See 53-55

^[78] It is worth mentioning that other industrial property rights (such as trademarks and industrial designs) are managed by the European Intellectual Property Office (EUIPO), based in Alicante, Spain. The EUIPO is an agency of the European Union, while the EPO is not.

^[79] See the EPC, Art 6.

^[80] Ibid, Art. 6 & 7

^[81] See EPO, “European Patent Convention signed in Munich, available at: https://www.epo.org/about-us/timeline.html, retrieved on 02 June 2018.

^[82] Ibid

^[83] See Fig B, 23

^[84] EPO, “Law and Practice-Guidelines for Examination” available at: https://www.epo.org/law-practice/legal-texts/html/guidelines/e/a_iii_12_1.htm, retrieved on 04 June 2018.

^[85] Ibid

^[86] See Fig. B, 23

^[87] See the EPC, Art. 4(2)

^[88] See the EPC, Art. 10

^[89] Ibid

^[90] Ibid

^[91] Ibid, Art 16. Also see Ibid,, Rule 10(1)

^[92] Ibid, Art. 17

^[93] Ibid, Art.18. Ibid, Rule 10(2)

^[94] Ibid, Art 19

^[95] Ibid, Art 20

^[96] Ibid, Art. 21

^[97] Ibid, Art. 22

^[98] See 24

^[99] See 26

^[100] See the EP, Art. 74

^[101] Ibid, Art. 64(1)&(3)

^[102] See the judgment of the French Tribunal de Grand Instance in Paris of 25 March 2009, on case N° RG : 07/13504 on Novatis v. Johnson & Johnson, available (in French) at: https://www.sedlex.fr/wp-content/uploads/2014/12/B20090223.pdf, retrieved on 14 August 2018.

^[103] See the EPLAW Patent Blog comment on Novatis v. Johnson & Johnson, 2010, available at: http://www.eplawpatentblog.com/eplaw/2010/10/fr-novartis-v-johnson-johnson.html, retrieved on 14 August 2018.

^[104] See the English Court of Appeal, Number: [2010] EWCA Civ 1039 on Novatis v. Johnson & Johnson of 29 September 2010, available at: http://www.eplawpatentblog.com/2010/October/Novartis%20final.pdf, retrieved on 14 August 2018.

^[105] See the EPLAW Patent Blog (n 103)

^[106] See the Düsseldorf Higher Court Order, 1-2 U 68/12 of 15 Dec. 2013 on Polpharma v. Astellas.

^[107] See England, Royle And De Coster, “Going Full Circle: Bolar In Europe And The Upc” : Vol 14 Issue 2 BSLR, pp 7-8. See also Thorsten, Bausch (Hoffmann Eitle ): “You must Bolar alone: Polish Supreme Court confirms exclusion of third-party manufacturers from the Bolar exemption” 07 November 2013, available at: http://patentblog.kluweriplaw.com/2013/11/07/you-must-bolar-alone-polish-supreme-court-confirms-exclusion-of-third-party-manufacturers-from-the-bolar-exemption/ , retrieved on 23 June 2018

^[108] See 18-20

^[109] See the EPC, Art 55 . See also the Paris Convention, Art 11

^[110] See EPC, Art 63

^[111] SeeRoche Products, Inc. v. Bolar Pharmaceutical Co., 733 F.2d 858 (Fed. Cir. 1984). See also the US Drug Price Competition and Patent Term Restoration Act ("Hatch-Waxman Act" 1984) 37 U.S.C. §271(e)(1).

^[112] See EPO, “Supplementary publication 5/2015”, Official Journal EPO 2015, pp-105-119, available at https://www.epo.org/law-practice/legal-texts/official-journal/2015/etc/se5/p105.html, retrieved on 26/06/2018

^[113] Ibid . See also Art 13 of Regulation (EC) No 469/2009 of the European Parliament And of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products.

^[114] Member states of the European Union have harmonized their laws to a certain extent, through the Treaty of the European Union and the Treaty of the Functioning of the European Union-TFEU (which are binding treaties), as well as through Regulations and Directives. While Regulations have direct effects on the EU member states (that is, not only binding but must be applied the way they are), Directives on their part are equally binding, but the member states have to adapt them into their national laws (with little variation, but without deviating from the goals of the Directives). See The Treaty of the Functioning of the European Union (TFEU), Maastricht, 1992, Art.288. As for patents for instance, we have Directive 98/44/EC of the European Parliament and of The Council of 6 July 1998 on the Legal Protection of Biotechnological Inventions which guides the non-patentability/patentability of biological materials; Regulation (Ec) No 1901/2006 of the European Parliament and of The Council of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004, just to name a few.

^[115] It was first established as the Imperial Patent Office in 1877 in Berlin. See the History of the German Patent and Trademark Office available at: https://www.dpma.de/english/our_office/about_us/history/index.html , retrieved on 04 July 2018.

^[116] For instance, according to the World Bank statistics, Germany had a population of about 82.67 inhabitants in 2016, while France had 66.9 million inhabitants, 65.64 million inhabitants for the UK, and 60.6 million inhabitants for Italy

^[117] See Wikipedia, “Big Four (Western Europe)” available at: https://en.wikipedia.org/wiki/Big_Four_(Western_Europe) , retrieved on 06 July 2018

^[118] For instance, in 2016, Germany had a total R&D expenditure of about than 92.4 billion EUR, while France had 48.6 billion EUR, UK 40.5 billion EUR and Italy 21.6 billion EUR. See Eurosta, “First estimates of Research & Development expenditure R&D expenditure in the EU remained stable in 2016” 183/2017 - 1 December 2017, available at: http://ec.europa.eu/eurostat/documents/2995521/8493770/9-01122017-AP-EN.pdf/94cc03d5-693b-4c1d-b5ca-8d32703591e7, retrieved on 06 July 2018

^[119] These leading European countries had sizable population (market) even was high even during the signing of the EPC in 1973. For instance, Germany in 1973 had a population of about 78 million inhabitants, France had 52 million, UK had 56 million, and Italy had 54 million inhabitants. See the 1979 individual country page of theses countries at: http://www.worldometers.info/world-population , retrieved on 24 July 2018.

^[120] See Regulation (EU) No 1257/2012 of The European Parliament and af The Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of Unitary Patent Protection, Art.3

^[121] Ibid

^[122] See the Unitary Patent Protection Regulation, Art 14

^[123] Ibid, Art 5

^[124] See the Agreement on a Unified Patent Court (UPCA) 2013/C 175/01, Art 20 & 21

^[125] Ibid, Art 24

^[126] Ibid, Art 1

^[127] See Id, Art 32. See also EPO, “FAQs Unified Patent Court (UPC)” available at https://www.epo.org/service-support/faq/procedure-law/upc.html#faq-1039, retried on 07 July 2018.

^[128] See the UPC Agreement, Art 6,7&8

^[129] Ibid. Also see Ibid, Art 33

^[130] Ibid, Art.10

^[131] Chaired by a legally qualified judge, ny panel of the Court of Appeal shall sit in a multinational composition of five judges (three legally qualified and two leally qualified ones). Ibid, Art.9

^[132] The Centre would provide an alternative patent resolution mechanism (outside the court system, through mediation and arbitration), however, a patent (with unitary effect) may not be revoked or limited in mediation or arbitration proceedings. See Id, Art.35

^[133] See EPO (n 127)

^[134] One would have expected the judges to be elected, especially as the UPC is an international court. Instead, the judges will be appointed. Art. 16 UPCA provides: “(1) The Advisory Committee shall establish a list of the most suitable candidates to be appointed as judges of the Court, in accordance with the Statute.(2) On the basis of that list, the Administrative Committee shall appoint the judges of the Court acting by common accord. (3)The implementing provisions for the appointment of judges are set out in the Statute.” Dr. Stjerna’s complaint has been welcomed by several reputed experts, including Prof. Siegried Bross, a retired FCC and patent judge. Prof. Bross argued that the EPC, EPO and the UPCA have put at risk democracy, rule of law and human rights in the following assertions: “The EPO staff had no effective protection of its fundamental rights due to the referral to the jurisdiction of the ILO, and the deciding bodies of the EPO could seriously never have been designated as independent courts”. So the staff is “without effective legal protection for the staff and without protection of their private sphere. (…) However – one must not overlook this – all concerned and involved parties, and particularly the constitutional organs of the Member States, have lacked the necessary awareness of this problem. In the past and to the present, they have not lived up to their obligations under the ECHR, the EU Charter of Fundamental Rights and their national constitutional obligations.” See the Kluwer Patent blogger, Interview with Prof. Siegried Bross, October 26 2017 , available at: http://patentblog.kluweriplaw.com/2017/10/26/epc-epo-and-upca-lack-guarantees-for-democracy-rule-of-law-and-human-rights/ , retrieved on 16 July 2018. Prof. Bross went ahead to question the independence of UPC judges with technical background by asserting that : “In this system, the judicial training and experience is put to use in an objective and distanced manner by the judge examining the plausibility and conclusiveness as well as the clarity of an expert opinion in his/her own responsibility. In this process, the questions, suggestions and opposite positions of the parties in the proceedings are helpful. Conversely, expert judges are not a priori free from inner biases and it is questionable whether they are still up to date with the developments in their field of expertise.” See Id.

^[135] In Slowakische Republik (Slovak Republic) v. Achmea BV , the CJEU (Grand Chamber) confirmed requirement for the protection of the principle of Union law autonomy in relation to international courts, on 06 March 2018 in paragraphs 33 and 36 of its preliminary ruling, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=199968&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=440963, retrieved on 13 July 2018. See also the Kluwer Patent blogger “German complaint threatens future Unitary Patent system,” November 2, 2017, available at: http://patentblog.kluweriplaw.com/2017/11/02/german-complaint-threatens-future-unitary-patent-system/, retrieved on 10 July 2018. Also see a detailed explanation of Dr. Stjerna’s complaint by Hogan Lovells in “UPC And Germany: Status Update - Constitutional Complaint, Ratification Timeline And More”, available at: http://www.theunitarypatent.com/news/upc-and-germany-status-update-constitutional-complaint-ratification-timeline-and-more , retrieved on 10 July 2018 .

^[136] See Dr. Stjerna, Ingve Björn “Constitutional complaint against UPCA ratification in Germany” (14/06/2017, latest update on 21/06/2018), available at: http://www.stjerna.de/cc/?lang=en , retrieved on 13 July 2018.

^[137] Ibid

^[138] Ibid

^[139] See the German Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz – BVerfGG), 1951, Art 90 (1).

^[140] See the Kluwer Patent blogger ( n 134)

^[141] Ibid

^[142] See the Unitary Patent Protection Regulation, Art. 9

^[143] See Wikipedia, “Brexit” available at: https://en.wikipedia.org/wiki/Brexit , retrieved on 20 July 2018

^[144] See the European Union (Withdrawal) Bill 2018, clause 4

^[145] The ratification took place on 26 April 2018. See UK Intellectual Property Office and Gyimah,Sam MP, “UK ratifies the Unified Patent Court Agreement”, 26 April 2018, available at: https://www.gov.uk/government/news/uk-ratifies-the-unified-patent-court-agreement, retrieved on 20 July 2018.

^[146] See the UPCA, the preamble and Art.2(b)

^[147] See the UPC Official Website, “UPC Locations” website at: https://www.unified-patent-court.org/locations , retrieved on 20 July 2018.

^[148] European conquest of Africa (scramble for Africa) started in 1880, and by 1914, the entire African continent was subjected to colonial rule, with the exception of Ethiopia and Liberia. See also UNESCO, General History of Africa Vol. VII: Africa under Colonial Domination 1880-1935, Paris, 1985, 1-2. See Fig. C and D, 42

^[149] Equatorial Guinea is a former Spanish colony in the Gulf of Guinea. It has Cameroon and Gabon as its immediate neighbors, although it shares maritime borders with Nigeria and Sao Tome and Principe. It has Cameroon as its long time major African trading partner. See Equatorial Guinea Imports, major Trade Partners at: http://eguinea.opendataforafrica.org/jxcugkd/equatorial-guinea-imports-major-trade-partners , retrieved on 21 July 2018. Guinea Bissau on its part has only two neighbours- Guinea and Senegal (both former French colonies) and has Senegal and Togo among its trade partners. See Guinea Bissau country profile at: https://atlas.media.mit.edu/de/profile/country/gnb/, retrieved on 21 July 2018.

^[150] See UNESCO upcit, pp 292-576

^[151] The former French Equatorial Africa resulted in the creation of the Central African Customs and Economic Union (UDEAC) in 1964, and in 1999 UDEAC became the Economic and Monetary Community of Central African States (CEMAC), comprising of six countries, five of which were under French colonial rule, with the exception of Equatorial Guinea (thus Cameroon, Congo, Gabon, Chad, Central African Republic and Equatorial Guinea). These six countries adopted a common currency, Francs CFA, with their central bank in Yaounde, Cameroon. See the presentation of CEMAC at: https://www.cemac.int/qui_sommes_nous, retrieved on 21 July 2018. The former French West Africa, there was first the Customs and Economic Union of Central African states (created in 1959), consisting of seven all the seven former colonies, including: Benin, Burkina Faso, Ivory Coast, Mali, Mauritania, Niger and Senegal, with Guinea and Togo as observers. See data.bnf.fr analysis at: http://data.bnf.fr/11950612/communaute_economique_de_l_afrique_de_l_ouest/ , retrieved on 21 July 2018. However, this zone of French influence noticed further integration like its Central African counterpart, by resulting in an earlier the creation of West African Economic and Monetary Union (UEMOA) , with a countries adopting Francs CFA as their common currency, with a central bank based in Abidjan, Ivory Coast. UEMOA comprises of eight member states, including all the former French West African colonies (except Guinea), plus Guinea-Bissau (a former Portuguese colony). See the presentation of UEMOA on its official website at: http://www.uemoa.int/fr/presentation-de-luemoa, retrieved on 21 July 2018.

^[152] See 10-12

^[153] It is worth mentioning that the harmonization of intellectual property law in the European Union has been slow because of conflicting legal cultures, especially between the Civil Law system (practiced by the United Kingdom) and the Civil Law jurisdictions of mainland Europe. However, even among the Civil Law countries like France and Germany, there are still some differences in terms of legal culture. For instance, in a domain like copyrights, the German Copyright Act adopts a monistic approach (both moral and economic rights of the author end at the same time-70 years after death), while that of France adopts but a dualistic approach (separating moral rights from economic rights of the author and holding that moral rights can last forever). See Sec. 64 of the German Copyrights Act, and Art.L121-2 of the French Intellectual Property Code. Differences of this nature have made the European Union to achieve very little success in harmonizing copyrights. Although this work is not directly related to copyrights, however, this example aims at demonstrating the extent to which different legal cultures could disturb harmonization or the adoption of a common position.

^[154] All the OAPI member states have French as their traditional official language, with the exception of Equatorial Guinea and Guinea-Bissau. However, although Equatorial Guinea is a traditionally Spanish speaking country, it has adopted French as a second official language since 2012 (See art 4 of its constitution as amended in 2012). So Guinea Bissau, a former Portuguese colony, has Portuguese as official language and remains the only OAPI member state that has little to do with French language.

^[155] See 31-32

^[156] With the exception of the Republic of Guinea that gained independence on 02 October 1958.

^[157] See AGIP, “Comoros Island becomes a member of OAPI”, 29 April 2013, available at: http://www.agip.com/news.aspx?id=3584 , retrieved on 24 July 2018

^[158] See 36-39

^[159] See Kitch, Edmund W, “The Nature and Foundation of the Patent System”, 20 J L & Econ 1977, 265-268

^[160] See 32-33

^[161] See 11

^[162] See details at: https://countryeconomy.com/demography/population/gabon?year=1979, retrieved on 24 July 2018.

^[163] See 32-33

^[164] The Organization for Harmonization in Africa of Business Law (OHADA) was created by the Treaty on the Harmonization of Business Law in Africa signed on October 17, 1993 in Port Louis, and revised in Quebec City, Canada, on October 17, 2008. OHADA’s mission is to ensure, at the level of its Member States, legal and judicial security for investors and companies. See the presentation of OHADA on its website at: http://www.ohada.org/index.php/fr/ohada-en-bref/ohada-presentation-generale, retrieved on 24 July 2017.

^[165] See17-18

^[166] See TRIPS, Art. 7 and 8

^[167] Ibid, Art. 29 (1). The Bangui Agreement equally considers insufficient or lack of enabling disclosure are a ground for invalidating a patent. See the Bangui Agreement, Art. 14(1)(d)(i) &39(1)(c) of Annex I.

^[168] The Bangui Agreement, Art.2 (1)(e)

^[169] See the World Bank, “Least developed countries: UN classification” available at: https://data.worldbank.org/region/least-developed-countries:-un-classification, retrieved on 27 July 2018.

^[170] OAPI countries are a history of political instability. Some of these nations have experienced civil war, for instance: Ivory Coast (2000-2007); Congo (1997-1999); Chad (1965-1979 and 2005-2010); Central African Republic (2012-2014); Guinea-Bissau (1998-1999); Niger (1990-1995). Although some OAPI member states have not yet witnessed a civil war, however, they are usually affected by conflicts in part of their territories, or military coup d’état (like in Guinea, Mauritania), or popular revolts (like recently in Togo and English-speaking part of Cameroon) or by terrorism ( Boko Haram terrorist activities in Cameroon, Chad, Niger and Al-Qaida in Mali).

^[171] See UniRank, “Top 200 Universities in Africa, 2018 African University Ranking”, available at: https://www.4icu.org/top-universities-africa/ , retrieved on 27 July 2018.

^[172] See S. Muthoka, E. Muthuri and J.Oginga “Globalisation in Africa: An Overview”, Munich Personal RePEc Archive, 2015, p. 6, available at: https://mpra.ub.uni-muenchen.de/65474/1/MPRA_paper_65474.pdf, retrieved on 27 July 2018.

^[173] See WTO, “Principles of the trading system” available at: https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm , retrieved on 27 July 2018

^[174] See AGIP, “Patent Procedure in OAPI”, available at: http://www.agip.com/Agip_Country_Service.aspx?country_key=217&service_key=P&lang=en , retrieved on 02 August 2018.

^[175] See 44-45

^[176] See 16-18

^[177] EPO, “What are Unitary Patents?, available at: https://www.epo.org/law-practice/unitary/unitary-patent/faq.html , retrieved on 02 August 2018.

^[178] National courts do not only have competence over patents, but such competence is extended to all industrial property rights administered by OAPI. Art 39 and Art 45 of Annex II to the Bangui Agreement confer competence of validity, revocation and infringement of utility models on national civil and criminal courts. Art 47 of Annex II on its part confers jurisdiction over trademark related issues on national civil courts. This jurisdiction was reaffirmed by the ICSID (International Center for the Settlement of Investment Disputes), in an arbitration case (case No. ARB/11/11) AHS Niger and Menzies Middle East and Africa S.A. v. Republic of Niger, of July 15, 2013, in which the arbitration tribunal ruled that the Republic of Niger expropriated AHS investments at the Niamey Airport, but even with clear evidence that the Republic of Niger infringed AHS trademark, the tribunal however declined jurisdiction over trademark matters, on grounds that only a Nigerien local civil court has such competence, in accordance with Art 47 of Annex III to the Bangui Agreement. See paragraphs 150, 151,152 of this case (in French language) at: https://www.italaw.com/sites/default/files/case-documents/italaw3034.pdf, retrieved on 03 August 2018.

^[179] The Bangui Agreement, Art.44 of Annex I

^[180] Ibid, Art. 61

^[181] Ibid, Art 62: “The criminal court, when dealing with an action for infringement, shall rule on the arguments put forward by the accused in his defense, such as the alleged invalidity or forfeiture of the patent or questions relating to ownership of the said patent.”

^[182] For instance, the most recent session of the Higher Judicial Council took place at the Unity Palace (Presidency of the Republic of Cameroon) on 07 June 2017, and it was presided by the Head of State, H.E. Paul Biya. During this session, matters relating to the promotion and appointment of magistrates were handled, as well as seven disciplinary cases. See the Official Website of the Presidency of the Republic of Cameroon, “Paul Biya Chairs Higher Judicial Council Session”, available at: https://www.prc.cm/en/news/2287-president-paul-biya-chairs-higher-judicial-council-session , visited on 09 September 2018.

^[183] In Cameroon for instance, to become a judge, one must hold at least a Bachelors Degree in Law, then pass the competitive entrance examination into the National School of Administration and Magistracy, known by its French acronym, ENAM, for training. So, it is not a domain that is meant for those with scientific background.

^[184] See pp.37-38, supra

^[185] Regulation (EU) 2017/1001 of The European Parliament and of The Council of 14 June 2017 on the European Union trade mark, Art.123

^[186] See OAPI Website, “Trainings” at: http://www.oapi.int/index.php/en/formation/master-2, retrieved on 13 August 2018.

^[187] The Bangui Agreement, Arts. 2,3,4 and 5 of Annex I

^[188] Ibid, Art 6 of Annex I: “Patents shall not be granted for the following: (a) inventions the exploitation of which is contrary to public policy or morality, provided that the exploitation of the invention shall not be considered contrary to public policy or morality merely because it is prohibited by law or regulation; (b) discoveries, scientific theories and mathematical methods; (c) inventions having as their subject matter plant varieties, animal species and essentially biological processes for the breeding of plants or animals other than microbiological processes and the products of such processes; (d) schemes, rules or methods for doing business, performing purely mental acts or playing games; (e) methods for the treatment of the human or animal body by surgery or therapy, including diagnostic methods; (f) mere presentations of information; (g) computer programs; (h) works of an exclusively ornamental nature; (i) literary, architectural and artistic works or any other aesthetic creation.”

^[189] Ibid, Art. 20

^[190] Ibid

^[191] See pp.20-21, supra

^[192] Medecins Sans Frontieres, “Drugs Patent under Spotlight: Sharing practical knowledge about pharmaceutical patents”, 2003, 18, available at: http://apps.who.int/medicinedocs/pdf/s4913e/s4913e.pdf , retrieved on 03 August 2018.

^[193] The Bangui Agreement, Art. 39(1) of Annex I: “Patents granted in the following cases shall be declared invalid: … (c) if the specification attached to the patent does not conform to the provisions of Article 14(d)(i) above, or if it does not state in a complete and honest manner the true methods of the inventor.” And Art.14(d) states: “…(i) a specification of the invention for which the application has been made, set out clearly and completely so that a person having ordinary knowledge and skill in the art could carry it out…”

^[194] See 59-60

^[195] Most conflicts in sub-Saharan Africa are directly related to the absence of decentralization and alternation of power. When power is centralized, then marginalization would easily arise, because the leading class may likely favor or disfavor certain regions. There would hardly be marginalization when there is decentralization of power (be it through a decentralized unitary state or through a federation), because each region or state enjoys a certain degree of autonomy, thus ensuring not only participation of all the locals, but also giving them the chance to develop their areas by themselves (through their locally elected leaders). Alternation of power helps not only to give other nationals the chance to implement their own visions, but it equally aids in avoiding political extremism. When a leader stays in power for too long because he has all the tools to ensure his regular reelection, it helps to nurse extremists, as even moderates may be tempted to think of other (unconventional) means to oust the said leader. The case of Zaire (Congo DR) under Mobutu (1965-1997) is a typical example.

^[196] For instance, Cameroon and its successful Agricultural Research Institute for Development (popularly known by its French acronym, IRAD)

^[197] For instance, in Cameroon, there is the Ministry of Mines, Industry and Technological Development that is in charge of intellectual property, while the is equally the Ministry of Scientific Research and Innovation that is whose competence is to realize technological progress through scientific research. With two different ministerial departments having competence on almost the same subject matter, it could be argued that it promotes efficiency, due to division of labour. However, it may as well be reasoned that involving several structures instead increases bureaucracy and running cost (especially considering the comfort associated to political positions in Africa), thus reducing the sums that would be invested in actual technological research.

^[198] WTO, “Trade Policy Review”, report on countries of the Central African Economic And Monetary Community (CEMAC), June 2013, p.13, available at: https://www.wto.org/english/tratop_e/tpr_e/s285_e.pdf, retrieved on 15 August 2018.

^[199] Cameroon for instance, has embarked on attaining economic emergence in 2035, with agriculture being the fundamental pole, while the industrial pole is focused only on the construction of dams for hydroelectric power, the creation of SMEs and the improvement of transport network. See details on the website of the Presidency of the Republic of Cameroon at: https://www.prc.cm/en/the-poles/economic-emergence-action, retrieved on 14 August 2018. Gabon has a similar strategy, but rather plans to attain economic emergence by 2025, and even plans to be a major exporter of palm oil before in the years ahead. See details at: http://www.visiongabon.com/our-masterplan/, retrieved on 14 August 2018.

^[200] See the Bangui Agreement, Art. 15.

^[201] See the Text Organizing MINMITD, 2012, Art. 60, available at: http://www.minmidt.cm/wp-content/uploads/2017/06/Texte-organique-du-MINMIDT.pdf, visited on 09 Sept. 2018.

^[202] See 53-54

^[203] See Saba Intellectual Property, “GCC: protecting innovation through the regional patent office”, June 2017, available at: http://www.sabaip.com/en/News/GCC-Protecting-Innovation-through-the-Regional-Patent-Office, retrieved on 15 August 2018.

^[204] The Bangui Agreement clearly provides in Art.20(3) of its Annex I that: “The Administrative Council shall decide whether, and to what extent, the provisions of paragraph (2)(a) [fictitious prior arts]and (b) [novelty, inventive step and industrial applicability] a bove shall be applied; in particular, it may decide whether all or some of the said provisions are applicable to one or several fields of technology covered by the inventions; it shall determine such fields by reference to the International Patent Classification.”

^[205] In a telephone interview between Mr. Mario Mpame of the Munich Intellectual Property Law Center and the Department of Legal Affairs of the OAPI, relating to OAPI patents and the competence of national courts, on 16 August 2018, it was noted that so far OAPI has recorded no case of patent litigation for infringement, invalidity, or revocation on grounds of public policy and morality.

^[206] See 12

^[207] Such alternative mechanisms include: negotiation; mediation; and arbitration. These are out of court dispute resolution mechanisms that are based on prior consent of the parties involved, and while the outcome of a negotiation or mediation may simply have the force of a contract, an arbitrary award is binding and is enforceable without appeal or review, except under certain circumstances. See the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958, Article 2-5.

^[208] See 52-53

^[209] In an effort to reinforce cooperation between OAPI and ARIPO, the two organizations have signed three agreements: two memoranda of understanding 1996 and 2005, and then a cooperation agreement in 2017. In the cooperation agreement, the organizations sought to cooperate in the following areas: “harmonization of OAPI and ARIPO systems; documentation and technical information; training and capacity building; user awareness; technical assistance; common positions on major IP issues affecting the Member States of the two Organizations at the international and African levels”. See the Cooperation Agreement between the African Intellectual Property Organization (OAPI) and the African Regional Intellectual Property Organization (ARIPO) available at: https://www.dropbox.com/s/9lxzhxsqvn0vf7u/ARIPO%20and%20OAPI%20COOPERATION%20AGREEMENT%202017_English.doc?dl=0, retrieved on 12 August 2018.

^[210] It is worth noting that OAPI and ARIPO do compose of 36 of the 54 African states, and powerful nations like Nigeria, South Africa, Egypt and Morocco do not belong to any of these organizations. So, the creation of a Pan-African Intellectual Property Organization (PAIPO), was an initiative of the African Union, in its attempt to establish a body that comprises of all the African states, as expressed in Decision Assembly/AU/Dec. 138 (VIII) and Decision Assembly/AU/Dec. 453 (XX) adopted by the Assembly of the Union in Addis Ababa, Ethiopia, in January 2007 and January 2013, respectively. However, considering that OAPI and ARIPO have for long been enjoying the benefits associated to collective intellectual property management, the member states of these two organizations did not want to see disappearance of these two organizations in favour of a continental one. It is for these reasons that the 36 member states of OAPI/ARIPO lobbied to include a clause protecting their organizations in the final statute of the PAIPO. Art.3 of the PAIPO Statute defines PAIPO’s mandate by stating that:

“The PAIPO shall be responsible for intellectual property and other emerging issues related to intellectual property in Africa and shall promote effective use of the intellectual property system as a tool for economic, cultural, social and technological development of the continent as well as set intellectual property standards that reflect the needs of the African Union, its Member States and RECs, ARIPO and OAPI”. In defining the functions of the PAIPO, the statute provides in Art. 4, that: “The PAIPO shall: (a)Harmonize intellectual property standards that reflect the needs of the AU, its Member States and RECs; ARIPO and OAPI; 5 b) Facilitate the realization and harmonization of national legislation and regional treaties with continental intellectual property standards; … (f) Strengthen existing regional organizations or such other organizations as may be necessary;…”. See the Statute of the Pan-African Intellectual Property Organization, Adopted by the Twenty Sixth Ordinary Session of the Assembly Held in Addis Ababa, Ethiopia 31 January 2016, available at: http://austrc.org/docs/paipo/PAIPO%20Statute-E.pdf, retrieved on 12 August 2018.

^[211] OAPI is a centralized regional organization (with the organization’s headquarters serving as a national patent office to all the 17 member states (see pp.16-18, supra)) while ARIPO has a limited competence, as its member states still retain their respective national patent offices, so they grant national patents (see Art. 3(11) of the ARIPO Harare Protocol on Patents and Industrial Designs, 2018), and these offices have the final say to an ARIPO patent application. Art. 3(14)(b) of the Harare Protocol states: “An ARIPO patent shall confer on its proprietor from the date on which the mention of its grant is published in the ARIPO Journal, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.” With such divergence, it becomes questionable whether the “harmonization of OAPI and ARIPO systems” as expressed in the above cited OAPI/ARIPO Cooperation Agreement could be achieved.

^[212] WIPO grants technical assistance to OAPI, especially by training its staff and other nationals of the OAPI member states.

^[213] EPO, unlike its African counterparts, is not so Euro-centric. Moreover, tow African nations-Morocco and Tunisa, are validating state of EPO (see p.23, supra). EPO is ready to cooperate with non-European entities. For instance, in June 2018, EPO concluded a memorandum of understanding with the South African Companies and Intellectual Property Commission (CIPC). See EPO, “EPO launches first-ever reinforced co-operation programme with South Africa”, 29 June 2018, available at: https://www.epo.org/news-issues/news/2018/20180629.html, retrieved on 13 August 2018.

^[214] The European unitary patent system is similar to that of the OAPI, safe for the fact that unlike OAPI, the European unitary patent system would have a Unified Patent Court, and it would coexist with national patents and classical EPO patents. However, the system, due to some reasons, is not yet operational. See pp.33-39, supra

^[215] See the UPCA, Art. 2(b)

^[216] Before harmonization, European nations had different laws that reflected their diversified legal cultures. This created a situation where a good could be protected in one country (thus only the right holder is authorized to make, sell, import or export), while according to the laws of another EU Member state, the good is either not protectable or the protection has simply elapse. The Duration Directive evokes the need to meet the common market requirements as the basis for harmonizing the duration of copy rights in its recital 12, by stating that: “In order to establish a high level of protection which at the same time meets the requirements of the internal market and the need to establish a legal environment conducive to the harmonious development of literary and artistic creation in the Community, the term of protection for copyright should be harmonised at 70 years after the death of the author or 70 years after the work is lawfully made available to the public, and for related rights at 50 years after the event which sets the term running.” See Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006on the term of protection of copyright and certain related rights, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006L0116&from=EN, retrieved on 15 August 2018.