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A new breed of legal support

Patents in Tanzania: What, why and how

2019-05-04 08:28:01

By Paul Kibuuka @tzpaulkibuuka

As I pointed out in last week’s article (“Why IP rights are crucial to Tanzanian SMEs”. The Citizen. 27 April 2019), there are two parallel legal systems governing intellectual property in Tanzania.

In Tanzania mainland, the governing patent law is the Patents (Registration) Act, Cap 217 [R.E. 2002]. In addition, pursuant to the WTO’s TRIPS Agreement, the Convention on Bio‐ Diversity (CBD) and the International Union for the Protection of New Varieties of Plants (UPOV), Tanzania mainland enacted the Protection of New Plant Varieties (Plant Breeders’ Rights) Act, 2002 to provide a framework for protection of rights to new plant varieties. The United Kingdom Design Protection Ordinance Cap 219 of 1936 is an archaic piece of legislation that is still in force.

In Zanzibar, patents are regulated under the Zanzibar Industrial Property Act 2008, which repealed the Patents Decree Cap 157 of 1932.

Inventors can also obtain patents through the African Intellectual Property Organization (ARIPO), the African Regional Intellectual Property Organization (OAPI), and under the Patent Cooperation Treaty (PCT) in respect of which Tanzania is a member. Such patents have effect in Tanzania mainland and Zanzibar just like patents granted under local legislation. 

An inventor is granted an exclusive right to prevent others from commercially exploiting his invention for a limited period of time in exchange for detailed public disclosure of the invention. This why Tanzanians should consider patenting their inventions. A patent also provides a return on investment in respect of time and money invested in developing a product or a process.

Moreover, if Tanzanian SMEs (which make up the majority of businesses operating around the country) have a portfolio of patents, they are likely to draw more interest from potential investors/lenders and to enhance their market value.

The term of patent protection in Tanzania mainland is 10 years by virtue of section 38(1) of the Patents (Registration) Act, Cap 217; yet, under ARIPO, the term of a patent in each member country is 20 years. 

In Zanzibar, the term is 20 years—in according with section 13(1)(a) of the Zanzibar Industrial Property Act 2008. In both sides of the ‘Union’, patent rights begin when the patent is issued and the term of the patent can be extended subject to statutory time limitations.

For an invention to be patentable, it must be new, involve an inventive step and be industrially applicable in solving a specific problem in the field of technology and it may relate to a product or process.

The first step to getting a patent is to engage an experienced lawyer to search the relevant patent database. If the invention is unique enough to be patented, the lawyer submits an application to the registrar of patents at the Business Registration and Licensing Agency (Brela) in the case of Tanzania mainland.

The application goes through a number of steps, including preliminary and formal examinations. If it is refused, the applicant may apply for either reconsideration before the patent registrar, or appeal at the High Court against the decision of the patent registrar. 

As earlier stated, applications for the grant of patents may also be filed directly with ARIPO. Patent applications are subject to payment of prescribed fees. A patent owner may grant a license to a third party in return for royalty payments. So, licensing patents has the potential to generate greater profits and encourage inventions.

Courts of law handle cases of infringement of patent rights.

The Tanzanian patent legal regime is intended to encourage inventions that are useful to society. However, the use of the patents system by especially SMEs is very low when compared to the use of trademarks system, the subject matter of our next week’s article.

Under the auspices of the Ministry of Education, Science and Technology, the government of Tanzania is called to encourage Tanzanians to enter the science, technology, engineering and mathematics (STEM) fields.

Through education and outreach programs, many Tanzanian businessmen and businesswomen could be educated about the benefits of having patents, some of which are highlighted in this article. And shouldn’t we also change the notion that inventing is for westerners?

Paul Kibuuka is the managing partner of Isidora & Company Advocates. Email: paul.kibuuka@isidoralaw.co.tz Twitter: @tzpaulkibuuka

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