Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

Innovation & Intellectual Property
Implicit in the foregoing is the assumption that the institutions and mechanisms
by which patent applications are examined for compliance and, at the same
time, collated and disseminated for public use, are crucial institutions and mechanisms
for a nation’s developmental goals. Among the objectives potentially served
(or undermined) by national patent offices are: development of science and technology;
facilitation of transfer of technology; creation of a significant publicly
available database of innovative information; and development of a local cadre of
scientists and technologists. This brings us back to the central research question
addressed by the study outlined in this chapter: do the patent offices of African
states perform their necessary functions; i.e. are they “fit for purpose”? The next
section (Section 2) outlines the research conducted. Section 3 outlines and analyses
the findings from the study, and Section 4 offers some conclusions.
2. The research
The research question (as outlined above) was derived from the observation, made
by many patent agents and scholars familiar with patent law regimes in Africa,
that, across the continent, there tends to be a gap between national statutory provisions
on patents and the actual practices in patent offices. My practical, personal
experiences made this observation compelling. Some years ago, I was instructed
by a US-based client to file an application in Nigeria for patent protection of an
invention. In the course of submitting the application, mistakes were made: a few
pages were omitted. However, the patent was nonetheless issued. When I subsequently
applied for a correction of the mistakes arising from the missing pages
of the description and claims, the official response from the Patent Office in the
Nigerian capital city, Abuja, was that the original application could not be traced
and that a brand-new application should be resubmitted. The resubmitted application
was then approved, without reference to the earlier application.
The implications of this experience with the Abuja Patent Office were clear:
the original application had not been examined for correctness and compliance
with the statutory requirements for patentability; and the patent office seemed
not to have a facility for storage and retrieval of documents. The gatekeeping role
of the patent office was, thus, practically nonexistent. In effect, the Abuja Patent
Office seemed clearly to be unfit for purpose, and was serving primarily as a clerical
outpost more interested in collecting fees than in facilitating the disclosure of
useful information to society (Lemley, 2001; Lemley and Sampat, 2012). Decisions
to allow or reject patents seemed to be based not on the merits of the applications
but on the basis of the ability to make payment of prescribed government
fees. The seeming absence of capacity for storage and retrieval of vital patent
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