PATENTLAW AND PATENT REGISTRATION IN TANZANIA
1.0INTRODUCTION
A patent is a document, issued, upon application,by a government office (or a regional office acting for several countries),which describes an invention and creates a legal situation in which thepatented invention can normally only be exploited (manufactured, used, sold,imported) with the authorization of the owner of the patent. The protectionconferred by the patent is limited in time (generally 20 years).
The Zanzibar Revolution occurred in 1964 and led to the overthrow of theSultan of Zanzibar and his mainly Arab government by local Africanrevolutionaries. Zanzibar was an ethnically diverse state consisting of anumber of islands off the east coast of Tanganyika which had been grantedindependence by Britain in 1963, April 1964 merged with Tanganyika to formUnited Republic of Tanzania (URT), Within the Tanzania constitutional set-up,Zanzibar retains some amount of autonomy and as such it has its own Legislature,Executive and Judiciary. These three organs deal and have jurisdictions over alist of matters which are “non-union matters”. Protection of IntellectualProperty is among those matters which are considered as non-union matters andas such each part of Tanzania has its own laws and arrangement to protectintellectual property. International Conventions unless stated otherwise duringthe signing and ratification, they bind both sides of Tanzania, namely MainlandTanzania and Zanzibar.
The IP regime in Zanzibar existed since the colonial administration. Itwas first introduced into Zanzibar in 1932 through Trademarks Decree Chapter159; the Patents Decree Chapter 157; and Industrial Design (Protection) Decree Chapter 158. In fact,these three decrees were archaic and had been in force since 1930s. Forinstance, the Patent Decree allowed the Registration of Patent should be done in UKbefore being registered in Zanzibar. The three Decrees mentioned above werehereby repealed and replaced by the Zanzibar Industrial Property Act No. 4 of2008 (the new law). The new law came into force on 29th July, 2008.
As Zanzibar is a part of the United Republic of Tanzania (URT), hassigned different Intellectual Property-related Agreements and become a memberof those agreements. The URT became a member of the TRIPS Agreement (1994)) in1995, the Paris Convention for the Protection of Industrial Property (1883) in1963, the Convention establishing the World Intellectual Property Organization(WIPO) (1967) in 1983, Berne Convention for the Protection of Literacy andArtist Works (1886) in 1994, Nice Agreement (1957) in 1999, Patent CooperationTreaty (PCT) (1970) in 1999 and Harare Protocol for the Protection of Patentsand Industrial design (1982) in 1999.
2.0TANZANIAN LAW ON PATENTS AND RELEVANT INSTITUTIONS
Patents provide a means for protecting the physicalembodiments of certain classes of new and useful inventions. Patents are thebroadest form of intellectual property protection, encompassing not only theprecise machine or process invented, but also variant machines or processesthat may employ the underlying concept of the invention. In Tanzania Patent ispreserved or protected by the Patent Act, [CAP 217 R.E. 2002]. This Act amongothers establishes the Patents Office and its functions include:
(i) To grant Patents .
(ii) To promoteinventiveness among nationals of the United Republic.
(iii) To establish andoperate a Patent documentation Centre for the purpose of dissemination ofinformation on Patents.
(iv) To collaborate withother bodies whether local or international whose functions relate to Patentmatters
(v) To provideinformation on patented technology so as to facilitate transfer and acquisitionof technology by the United Republic of Tanzania.
Thefollowing persons have the right to patent:
a) An inventor or a traditional knowledge holder, inview of protecting the system
b) If two or more persons have jointly made aninvention the right to the Patent shall belong to them jointly.
c) If and to the extent to which two or more personshave made the saving Invention independently of each other, the person who madeearliest application shall have the right to the Patent.
d) The right to a Patent may be assigned, ortransferred by succession.
The Inventor shallbe named in the Patent, unless in a special written declaration addressed tothe Registrar, he indicates that he wishes not to be named. For a Patent to be registrable, it shouldpossess the following qualities:
(i) The invention should be new and must not be tooobvious
(ii) The invention should be of practical use
(iii) The invention should have an inventive step
3.0THE PATENT REGISTRATION PROCESS IN TANZANIA MAINLAND AND ZANZIBAR
The inventor or any person who has a right over an invention file apatent application with the office of the Registrar of Patents. It is importantto do a prior search on the specific system that the patent applicant wants to protect, in order to acknowledgeprior registered patents at TIPASIC (Tanzanian Intellectual property advisoryservices and information Centre). However, the Patent application should contain a title of the invention,description of the invention, stating the technical field under which theinvention falls. The description should be in clear language to be understoodby a person with average understanding in the field such that they can work onthe invention basing on the description. More elaboration such as drawingsshould be made and should also state what is claimed in the invention.
Application forgrant of Patent has to be made to the Registrar of Patent by filling the prescribed forms, which are a request, adescription, one or more claims, one or more drawings (where necessary) and an abstract. These different itemsare detailed as follows:
3.1 The Request.
The request shall state the name of and the prescribed data concerningthe applicant; the inventor and the agent if any as well as the title of theinvention/specific traditional knowledge. Where a person making an applicationis not the inventor or the traditional knowledge holder, the patent requestshall be accompanied by a Sworn Declaration. This declaration is to the effectthat the person making the application has a right to the patent. Theappointment of an agent shall be indicated by his designation in request or byfurnishing a Power of Attorney signed by the person making application.
3.2 Description.
It shall disclosethe invention/traditional knowledge in a manner, which is sufficiently clearand it shall be completed by a person skilled in the Art. It shall indicate theprocesses of production for the invention. It shall include drawings/photographs,which are essential for understanding the invention.
3.4 The claim.
It shall define thematter for which protection is sought.
3.5 The abstract.
It shall serve astechnical information, but not purposely to protect the scope of the protectionsought.
4.0 HOW APATENT APPLICATION BE RECOGNIZED AT THE INTERNATIONAL LEVEL
Patentsunder an international application are filed in accordance with the PatentCooperation Treaty and its regulations are summarized hereunder. InternationalPatent Applications have to be filed in the Patents Office of the Ministry ofIndustry of Tanzania, which shall act as a receiving office. The Patents officeacts as a designated office. International Patent Applications can also befiled in the International Bureau of the World Intellectual PropertyOrganization (WIPO) in Geneva. The functions of a Patents office shall beperformed in accordance with the provisions of the Patent Cooperation Treaty,and with the provisions of the Patent Act and the regulations pertainingthereto and in case of conflict, the provisions of Patent Cooperation Treaty shallprevail.
International applications shall be searched orexamined in order to establish whether it is new or if it has not beenanticipated by prior art. This should be presented as an international searchreport. A patent application under the Patent Cooperation Treaty shall beenforced in the designated countries selected by the applicant. The Patent isgranted when the patent application conforms to the laws in the selectedcountries.
Furthermore, there is the Africa RegionIntellectual property Organization (ARIPO) situated in Harare, Zimbabwewhich acts as a regional office for the protection of Intellectual Property.Therefore, international Patents can be filed through the Patent CooperationTreaty or through ARIPO (when seeking protection in ARIPO’s signatorycountries)
5.0 LIFETIME OF A PATENT
APatent shall expire at the end of the tenth year after the date of thefilling of the application. However, when a granted period of ten year hasexpired the application can be renewed on the request of the patent owner. Thisrequest can be presented not more than 12 months and not less than one month beforethe expiration of the patent. For this,the owner of the patent will have to prove to the Registrar that, the inventionor patent is being worked in the United Republic of Tanzania at the date of requestand there are no legitimate reasons for failing to work with the invention. Ifthese two conditions are fulfilled, the owner of Patent has to pay theprescribed fee and the Registrar shall extend the term for a period of fiveyears.
Inorder to maintain the application or the patent, an annual fee has to be paidplus an additional fee of annual increase each year the patent gets older,shall be paid in advance to the Registrar starting with the second year afterthe date of filling the application. A grace period of six months shall begranted for the payment of the annual fee upon payment of a surcharge whoseamount shall be fixed by the regulations. The application shall be deemed tohave been withdrawn or Patent shall lapse if an annual fee is not paid, and thesaid lapse shall forthwith be published by the Registrar.
Ifthe patent has been withdrawn, any interested person within twelve months fromthe expiration of the grace period may request the Registrar to restore anapplication that is deemed to have been withdrawn or a patent that has lapsed.The Registrar shall make an order restoring the application or the patent, ifthe Patent holder certifies, with supporting documents, that the failure to paythe annual fee was unintentional and all annual fees due have been paid. Anyinterested person may appeal to the Court against the decision of the Registrargranting or refusing to grant a request for restoration.
6.0 CHANGING THE OWNERSHIP OR JOINT OWNERSHIP OFPATENTS
Change in ownership of applications and patents must be done in writingand signed by the different parties. Any changes must be recorded in the patentregister in accordance with the Patent regulations. With no agreement to thecontrary between the parties, joint owners of the application or patent, mayseparately transfer their shares, exploit the patented invention or knowledge,and preclude any person from exploiting, but may jointly grant permission toany third person to do any of the acts.
7.0 HOW THE LAW ON PATENTS PROTECT PATENT OWNER’SINVENTIONS AGAINST INFRINGEMENT
The law on patent provides that any act performed by a person other thanthe owner of patent and without authorization in relation to a product orprocess shall constitute the infringement of the patent. On the request of theowner of the patent, the Court shall grant the following relieves:
(I) An injunction to prevent infringement, or toprohibit the continuation of infringement.
(II) Damages
(III) Any other remedy provided for in the civil law.
Any person who intentionally infringes a Patent shall be guilty of anoffense and shall, on conviction, be liable to a fine not exceeding fivehundred thousand shillings or to a term of imprisonment of five years or toboth. Moreover, the person should declare forfeiture of the goods made throughthe infringement of that Patent. Maximum penalties shall be doubled in theevent of recidivism on the afore-mentioned offense.
8.0 CONCLUSION
The protection of intellectual property inTanzania, though in its infant stages provides for a comprehensive mechanismthrough which individual can protect the creations of their minds (inventions).Tanzanian law also provides for the protection of other works under variousintellectual property laws. Such protection plays a double role of protecting such works and acting as anincentive to be creative.