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

African Patent Offices Not Fit for Purpose
disclosure objectives of patent frameworks (Ghosh and Kesan, 2004). Further,
the argument for rational ignorance is undermined by the reality that a rational
national patent regime would be concerned with assessing both the costs and
benefits of the patent system on all actors, as opposed to just (in the case of nonexamination
of applications) the apparent fiscal and operational efficiencies
sought by a patent office.
Where patent offices do not provide substantive examination of applications,
they encourage foreign patent applicants to seek to overwhelm weak patent offices
with dubious applications, in the (entirely reasonable) hope that dubious applications
will slip through and be granted juridical validity. Such occurrences would
be a deep disservice to the nation concerned. Some scholars have suggested that
the patent system could be improved by structuring an incentivised payment system
for patent examiners (Burke and Reitzig, 2007; Geller, 2003). A simplified
example would be to use court rulings as a measure of performance, i.e. a patent
examiner could be sanctioned if a patent application which he/she approved
via examination (or had another role in the processing of) is later invalidated in
court. However, certain practical issues reduce the usefulness of this kind of recommendation,
e.g.:
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the rare occurrence of patent disputes and a strong tendency to settle out
of court;
long delays, in patent disputes, between patent issuance and final court
judgments;
other technical grounds for patent invalidations not connected to the
performance of examiners; and
complex sources of prior art in multicultural and multilingual African
settings, making accurate examination or search extremely difficult.
A recommendation that cannot be argued against, however, is that there is a need
for better training of legal counsel and judges in IP matters in Africa. A highquality
patent system is impossible to achieve with poor-quality lawyers and inexperienced
judges; ineffective examination protocols assist to infiltrate the public
domain with harmful and oppressive monopolies (Katznelson, 2010). Patent law
requires a heterogeneous national administrative regime, with the patent office
in the central but not solitary role (Farrell and Merges, 2004). However, there
seems to be, in the countries surveyed, a palpable lack of appreciation for patent
administration within a multi-institutional context. Multiple sectors of government
need to take a deep and critical interest in the context and operations of a
country’s patent office.
As stated at the beginning of this chapter, patent offices are meant to engage
in two key activities:
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