Ghana: Patent Protection In Ghana

INTRODUCTION

Intellectual property can be an income generating corporate asset. By protecting a company's intellectual property, the company is vested with rights to exploit or commercialize the intellectual property to generate revenue. Revenue may be generated by licensing the intellectual property for fees, building an industry around the protected intellectual property and enjoying the exclusivity of exploitation or industry control for the term of the rights afforded the intellectual property.

Lack of awareness of the legal rights and protection afforded registered intellectual property, particularly the exclusive exploitation rights over product and process inventions has contributed to minimal patronage of intellectual property registration by small and medium scale enterprises, as well as individuals in Ghana. In light of this, the Government of Ghana has developed the National Intellectual Property Policy and Strategy (NIPPS) to effectively harness and manage the intellectual property system in Ghana.

PATENTS

A patent is a legal document which grants its holder the exclusive right to control the use of an invention within a limited area for a specified period. An invention qualifies for a patent if it is new, involves an inventive step and is industrially applicable.

An invention is new when it has not been anticipated by a prior art anywhere in the world. Prior art consists of everything disclosed to the public anywhere in the world by publication in tangible form or by oral disclosure, or by use in any other way prior to filing of the patent application. A disclosure made to the public within twelve (12) months preceding the filing date of the application is not considered as prior art in Ghana. An invention is generally said to be new if it shows some characteristic which is unknown in its technical field. An invention involves an inventive step if it is not obvious to a person having ordinary skill in the art, taking into consideration the prior art relevant to the patent application. The ability to use an invention in any industry makes it industrially applicable.

The Patents Act, 2003 (Act 657) (Patents Act) and the Patents Regulations 1996 (L.I. 1616) (Patents Regulations) constitute the legislative framework for the grant and protection of patents in Ghana. The Patents Office of the Registrar General's Department is the issuing office of a patent in Ghana.

Patents are territorial therefore a grant of a patent in Ghana affords the inventor the rights and protection of the invention only within Ghana. A patent may also be granted in respect of Ghana by filing a regional patent application with the African Regional Industrial Property Organisation (ARIPO).

The World Intellectual Property Organisation (WIPO) administers the Patent Corporation Treaty (PCT). The PCT ensures a unified method for filing international applications in member countries. Under the PCT, an applicant is able to file applications, conduct searches and examine inventions to determine their patentability. An applicant is then able to file an application in the national phase at the Patents Office for the grant of a patent by Ghana.

The Patents Act excludes some inventions from the grant of patent. These include: (i) discoveries, scientific theories and mathematical methods; (ii) methods for conducting business or playing purely mental games; and (iii) inventions contrary to public policy and morality.

The legislative framework also makes provision for the grant of rights and protection over inventions which do not qualify for patent protection. In such an instance, a utility model certificate may be granted in respect of new and industrially applicable inventions under the Patents Act. A utility model certificate is valid for seven (7) years subject to the payment of annual fees.

PATENT APPLICATION PROCEDURE

An application for a patent in Ghana must be filed with the Registrar-General (Registrar). The application must contain the following formal requirements:

i. a request containing a petition for the grant of the patent, the title of the invention, and the particulars of the inventor or applicant;

ii. a clear description of the invention in a manner which will enable a person with ordinary skill in the art carry out the invention;

iii. one or more claims defining the matter for which patent protection is sought;

iv. drawings where necessary for the understanding of the invention in a sufficiently clear manner; and

v. an abstract providing detailed technical information on the invention.

A prior art search is a necessary preliminary step to filing a patent application. Although there is no legal requirement under Ghanaian law for a prior art search, similar patents are likely to invalidate a claim to an invention in respect of which a patent application is filed. Conducting a search allows an inventor to assess the patentability of the invention, gauge the success of the patent application, and determine the coverage of the patent claim.

An application must be made in triplicate and is subject to the payment of application fees.1 The application must relate to one invention only or to a group of inventions which form a single inventive concept. The Registrar will conduct a preliminary examination upon receipt of a patent application to ascertain if the application contains a petition for the grant of a patent, the title of the invention, and the particulars of the inventor or applicant, following which a filing date will be accorded. The filing date is the date of receipt of an application which is compliant with the above requirements. The Registrar will then examine the application documents to ensure compliance with the formal requirements. A substantive examination is conducted as a final step to assess the patentability of the invention. A decision to grant or refuse a patent is made following the substantive examination by or on behalf of the Registrar. A decision on a patent application is required under the law to be given not later than two (2) years after commencement of examination of the application. In practice, it takes longer than two (2) years. The applicant may withdraw or amend the application until the time when a decision is to be made in respect of the application.

The Registrar will publish a reference of a grant of a patent in the Commercial and Industrial Bulletin, and issue a certificate of the grant and a copy of the patent to the applicant. The grant of a patent is subject to the payment of annual renewal fees. Annual renewal fees are paid in advance beginning a year after the filing date of the patent application.

A patent application may be filed by an agent on behalf of the inventor. Where an applicant is not the inventor, the request must be submitted with a statement justifying the applicant's right to the patent. Where the inventor-applicant is not ordinarily resident in Ghana, or has its principal place of business outside Ghana, there is a requirement for representation by a legal practitioner resident and practicing in Ghana.

All documents filed with the Registrar which are in a language other than English are required to be accompanied by English translations verified to the satisfaction of the Registrar.

EFFECT OF A GRANT OF PATENT

The grant of a patent confers on the inventor, exclusive rights to the invention in Ghana for twenty (20) years commencing from the filing date of a patent application. The inventor is named as the patent owner and enjoys the exclusive use of the invention for the period of the grant. The prior consent of the inventor is required to exploit the patented invention. Exploitation of a patented invention involves the making, importing, offering for sale, selling and using the product or process, or stocking the product for the purposes of offering for sale, selling or using.

The owner of a patent has an additional right to institute legal proceedings against any person who infringes the patent by exploiting it without the consent of the owner, or performing other acts which may lead to infringement. The court may grant an injunction, award damages in respect of an infringement and / or grant any other appropriate legal relief to the patent owner. Where the patent right is in respect of a process for obtaining a product, the burden is on an alleged infringer to prove that the process used to obtain an identical product is different from the patented process. In the absence of proof to the contrary, any new and identical product produced without the consent of the owner of the patent will be deemed to have been obtained by the patented process.

Notwithstanding the foregoing, the invention may be exploited by the Government of Ghana without the prior consent of the owner for public interest considerations, and the prevention of anti-competitive practices. Such exploitation is however subject to the payment of adequate remuneration to the owner.

The law permits the assignment, transfer and devolution by succession of a patent. A change in ownership of a patent, or a licence granted in respect of a patent must be in writing and submitted to the Registrar to be recorded and published. A change in ownership of a patent will have no effect against third parties until it has been recorded.

CONCLUSION

WIPO highlights the benefits of patents or a patent portfolio to include: (i) a bargaining chip to obtain a competitive or strategic advantage when dealing with competitors; and (ii) enhancing a company's image or reputation as possessing some expertise or technical knowledge. Such benefits may be useful in raising the market value or goodwill of a company.

Footnote

1 The application fee is currently set at GHS 100.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions