Patent Act 2003

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This article was considered for deletion at Wikipedia on June 2 2017. This is a backup of Wikipedia:Patent_Act_2003. All of its AfDs can be found at Wikipedia:Special:PrefixIndex/Wikipedia:Articles_for_deletion/Patent_Act_2003, the first at Wikipedia:Wikipedia:Articles_for_deletion/Patent_Act_2003. Purge

Template:Infobox legislation

The Patent Act, 2003(The Act) is the law governing the granting and protections of patents in Ghana.

Template:Nobots Template:Copyviocore Historically, Patents were granted through the colonial authorities by, the Patents Ordnance No. 1 of 1899 making UK patent law applicable to the Gold Coast. In effect, patents could only be registered in the UK and re-registered in Ghana after successful registration in the UK.[1] Until the year 1992, the patent system in Ghana was operated as a re-registration system governed by the Patents Registration Ordnance, 1925, and the Patents Registration (Amendment) Decree, 1972, which excluded pharmaceutical products from enjoying patent protection and cancelled all prior Pharmaceutical patents[1]. However, since the enactment of The Patent Law, 1992, PNDCL.305A, it was possible to obtain a Ghanaian patent directly or through the Patent Cooperation Treaty (PCT) under WIPO and also through the African Regional Intellectual Property Organisation (ARIPO)[1]

Part by Part Review of the Act

DPv2 loves original research.

Part 1

Sections 1 to 15

This part of the act primarily deals with what patent and inventions are, the requirements needed for the grant of a patent, the procedure for applying for a patent and also gives the rights conferred by the patent as well as what will invalidate a patent[2].

A patent has been defined as the title granted to protect an invention[3]. An invention on the other hand has been defined as an idea of an inventor which permits in practice, the solution to a specific problem in the field of technology[4]. Under the patent act, discoveries, scientific theories and mathematical methods, schemes, rules or methods for doing business, performing purely mental acts or playing games, methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body are excluded from patent protection[5] . The requirement for patentability is that the invention must be new, involves an inventive step and is industrially applicable[6] . The act defines states that, an invention is new if it is not anticipated by a prior art[7] . Prior art consists of everything disclosed to the public, anywhere in the world, by publication in tangible form or by oral disclosure, by use or in any other way, prior to the filing or, where appropriate, the priority date, of the application claiming the invention[8]. An invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the invention and as defined in subsection (3) of the Act, it would not have been obvious to a person having ordinary skill in the art [9]. An invention shall be considered industrially applicable if it can be made or used in any kind of industry[10] . The right to a patent belongs to the inventor and where two or more persons have jointly made an invention, the right to the patent belongs to them jointly[11]. The right to a patent under the act may be assigned, transferred or devolve by succession[12]. As regard the procedure for applying for a patent under the act, an inventor must file an application for the registration of a patent with the Registrar of Companies and shall contain a request, a description, one or more claims, one or more drawings where required, and an abstract[13]. After a patent has been granted, it prevents the exploitation of the patented invention in the country by a person other than the owner of the patent shall require the owner's consent[14]. The owner of the patent shall, in addition to any other rights, remedies or actions available to the owner, have the right, to institute court proceedings against any person who infringes the patent without the consent of the owner[15]. A patent lasts for 20 years after the date of filing the application[16]. A patent can be invalidated by a court upon the request of an interested person[17]. If the person requesting the invalidation proves that a person has not complied with any of the requirements of a patent under sections 1(2) and (3), 2, 3, 5 (5), (6), (7) or (8); or if the owner of the patent is not the inventor or the inventor's successor in title, the patent shall be invalidated[18].

Part 2

Sections 16 to 18

Part 2 of this act speaks to utility model certificates. A utility model certificate is a title of protection for 3D objects capable of industrial application with a pre-determined shape and form, which provides a solution to a technical problems[19].

The utility model certificate is similar to a patent application but with less stringent procedures of application and shorter duration[20]. The requirement needed for a utility model certificate is that it should be new and have industrial applicability[21]. A utility model certificate expires after seven years of application without the possibility of a renewal[22]. An application for patent can be converted to one for a utility model certificate and vice versa if prior to the grant or refusal of the application the prescribed fee for the latter is paid[23].

Part 3

Sections 19 to 28

This part talks about any international application for patent designating Ghana whereby such an application shall be treated as a patent application or a utility model certificate filed under this Act with the filing date as the international filing date under the treaty[24]. There shall be a patent office which shall act as the receiving, designated and elected office in respect of any international application involving Ghana or a resident or a national of Ghana[25]. The international application shall be filed with the Patent Office in a prescribed language and a prescribed transmittal fee[26]. The Patent Office shall not commence the processing of an international application designating Ghana before the expiration of the time limit except if the applicant complies with certain requirements and files with the Patent Office an express request for early commencement of the processing[27]. The effect of failure to comply with the requirements within the time limit is that, the application shall be deemed withdrawn[28]. The regulation or treaty governing an international application for patent designating Ghana is the Harare Protocol[29]. The international application shall be processed by the Patent Office in accordance with the treaty and the regulation made under the treaty and where there are any conflicting views with the Act, the Treaty, the regulation made under the treaty and the administrative instructions shall prevail[30].

Part 4

Sections 29 to 40

This part provides that an application for a patent or a change in ownership of a patent application if any should be in writing[31]. Such application or change in ownership of an application should be recorded and published by the registrar before it can have effect against a third party[32]. An applicant of a patent or a utility model certificate who is ordinarily resident outside the country or has his or her principal place of business outside the country is required to have a legal representation in the country who shall be a legal practitioner resident and practicing in the jurisdiction[33].

The Act provides that a patent registry be established which shall be located at the registrar general’s department of the ministry of justice. This office shall be headed by the registrar general and is responsible for the registration of patents and its administration[34]. A register is maintained by the registry for patents and utility model applications and all the recordings specified in the Act shall be recorded in the register[35]. The register shall be opened to the general public and all publications and recordings made in it shall be recorded in the Gazette[36]. The Act provides the registrar with the discretion of extending the time for any application or act under the Act upon notice to the parties and also upon the terms that the registrar will provide after a written request has been made to him by the parties[37]. The registrar is required to comply with the provisions of Article 296 in the exercise of his discretionary powers conferred under the Act[38]. Any one however who is aggrieved by any decision of the registrar in the exercise of his discretionary powers can appeal to the court against such decision[39].

The Act also provides that anyone who commits acts that are in violation of the exercise of another’s patent right commits an offence and will be liable of a term of imprisonment not exceeding two years or to a fine not exceeding two thousand penalty units[40]. In cases also of conflicts between the Act and any international treaty that the state has ascribed to, the international treaty will take precedence over the Act[41]. The minister is allowed the discretion to issue legislative instruments for the implementation of the Act where it is required and the registrar is allowed to issue administrative instructions in the exercise of his functions[42].

References

  1. 1.0 1.1 1.2 Sikoyo, George M.; Nyukuri, Elvin; Wakhungu, Judi W. (2006). Intellectual Property Protection in Africa: Status of Laws, Research, and Policy Analysis in Ghana, Kenya, Nigeria, South Africa, and Uganda. African Centre for Technology Studies (ACTS) Ecopolicy Series. 16. Acts Press. p. 15. ISBN 9789966411396. 
  2. Part 1 of Act 657
  3. section 1(1) of Act 657
  4. Section1(2) of Act 657
  5. Section 2 of Act 657
  6. Section3(1)
  7. Section 3(2) of Act 657
  8. Section3(3) of Act 657
  9. Section 3(5) of Act 657
  10. Section 3(6) of Act 657
  11. Sections 4(1) and (2) of Act 657
  12. Section4(4) of Act 657
  13. Section 5(1) of Act 657
  14. Section 11(1) of Act 657
  15. Section 11(3) of Act 657
  16. Section 12(1) of Act 657
  17. Section 15(1) and (2)
  18. Section 15(2)(a) and (b)
  19. < https://www.obi.gr/obi/Default.aspx?tabid=216> accessed 12th April,2017
  20. ibid
  21. Section 17(1) of Act 657
  22. Section 17(4) of Act 657
  23. Section 18(1) and (2) of Act 657
  24. Section 19 of Act 657
  25. Sections 20, 22 and 23 of Act 657
  26. Section 21 of Act 657
  27. Section 25 of Act 657
  28. Section 26 of Act 657
  29. Section 27 of Act 657
  30. Section 28 of Act 657
  31. Section 29(1) of Act 657
  32. Section 29(3) of Act 657
  33. Section 30 of Act 657
  34. section 31(2) and (3) of Act 657
  35. Section 32(1) and (2) of Act 657
  36. Section 32(3) and (4)
  37. Section34
  38. Section 35
  39. Section 36
  40. Section 37
  41. Section 38
  42. Sections 39 and 40 of Act 657

External links