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

African Patent Offices Not Fit for Purpose
More encouraging was the discovery of a sense of professionalism, however
frail, in some national patent offices. Kenya, for example, was found to have a
professional cadre of patent examiners responsible for conducting examination
in respect of national patent applications. However, the number of examiners is
limited, and in most cases the Kenya Industrial Property Institute (KIPI) opts
for the use of international search authorities when determining prior art. It was
also found that both Morocco and Mauritius have examiners, but only two or
three at any one time. Also potentially positive was the finding that many of the
African states surveyed have, through membership of World Trade Organisation
(WTO) and World Intellectual Property Organisation (WIPO), begun to update
and modernise their patent laws.
It was found that the existence of regional groupings ARIPO (see Sayre,
2012) and OAPI had improved the patent examination situation only slightly.
These bodies have teams (albeit skeletal) of patent examiners, and for ARIPO’s
17 Member States, ARIPO headquarters in Harare is empowered, under the
Harare Protocol, to receive and process patent and industrial design applications
on Member States’ behalf. Evidence was also found that ARIPO, unlike most of
the national patent offices surveyed, conducts substantive patent examination
(actively evaluating novelty, inventive step and industrial applicability), with the
examinations done by ARIPO examiners drawn from Member States. However,
it is well to bear in mind that ARIPO patents do not have region-wide effect,
and a substantive complicating factor for the ARIPO examiners is that the 17
Member States of ARIPO do not have the same patent laws. (There are some
general similarities, but also peculiarities, across the pieces of patent legislation
in the Member States.) While studies have found that ARIPO examiners are well
trained, this has to be placed in the context of the mélange of patent laws which
the examiners have to see patent applications through (Thambisetty, 2009). As
Sayre (2012) observes,
[…] patent applications allowed by ARIPO may be declined by national patent
offices if, for example, [they pertain] to subject matter excluded from patent
eligibility by national law (e.g., in the realm of biological organisms). (2012)
Also important to note is that the vast majority of patent applications filed with
ARIPO in Harare emanate from US and European pharmaceutical companies
(see Drahos [2010] for the economic implications of this trend, which was
not the focus of this research). Another notable reality in respect of ARIPO,
observed by Sayre (2012), is that virtually all the applications filed at ARIPO
are drafted by foreign patent agents, suggesting a near-total absence of African
patent agents skilled in the drafting of patent claims and applications. In the
words of Sayre,
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