Ghana-Selected Compulsory Licensing, Government Use, and Notable Patent Exception Provisions

Patent Law, 1992

Part I

(Definition of invention.)

1.-(1) For the purposes of this Law, "invention" means a solution to a specific problem in the field of technology.

(2) An invention may be, or may relate to, a product or a process.

(3) The following shall not be regarded as inventions within the meaning of subsection (1) of this section-

(a) discoveries, scientific and mathematical theories;

(b) plant or animal varieties or essentially biological processes for the production of plants or animals, other than microbiological processes and the products of such processes;

(c) schemes, rules or methods for doing business, performing purely mental acts or playing games;

(d) methods of treatment of the human or animal body by surgery or therapy, as well as diagnostic methods; this provision shall not apply to products for use in any of these methods;

(e) mere presentation of information;

(f) computer programmes.

(Prohibition by law, public order or morality.)

6. A patent may be obtained in respect of an invention the exploitation of which is prohibited by law, except where the prohibition relates to public order or morality.

(Temporary exclusion from patentability.)

7.-(1) The Secretary if satisfied that it is in the interest of national security , economy, health or any other national concern so to do, and after consultation with the Patent Policy Committee established under section 69 of this Law, may by legislative instrument exclude inventions for products or processes for the manufacture of such products as may be specified from patentability for a period of not more than 10 years.

(2) Any exclusion under subsection (1) of this section may for the same or similar reason and after the necessary consultation be extended by the Secretary by legislative instrument for a further period provided each such period does not exceed 10 years.

Part IX
Compulsory Licences

(Compulsory licences for non-working and similar reasons.)

45.-(1) At any time after four years from the filing date of an application or three years from the grant of a patent whichever period last expires, any person may, in proceedings instituted by him against the owner of the patent or in proceedings instituted against him by the said owner, request the court to grant a compulsory licence on any of the following grounds-

(a) that a patented invention, which is capable of being worked in the country has not been so worked;

(b) that the existing degree of working of the patented invention in the country does not meet on reasonable terms the demand for the patented product on the domestic market or for purposes of exportation;

(c) that the working of the patented invention in the country is being hindered or prevented by the importation of the patented product; or

(d) that, by reason of the refusal by the owner of the patent to grant licences on reasonable terms, the establishment or development of industrial or commercial activity in the country , or the possibilities of exportation from the country , are unfairly and substantially prejudiced.

(2) Where the patented invention is a process, "patented product" in subsection (1) of this section means a product obtained directly by means of the process.

(3) A compulsory licence shall not be granted in respect of a patent if the owner of the patent satisfies the court that his actions in relation to the patented invention are justifiable in the circumstances.

(Compulsory licences based upon the interdependence of patents.)

46.-(1) Where a patented invention cannot be worked without infringing rights derived from an earlier patent, the owner of the later patent may, in proceedings instituted by him against the owner of the earlier patent or in proceedings instituted against him, request the Tribunal at any time to grant a compulsory licence with respect to the earlier patent to the extent necessary for the working of his invention if the invention-

(a) serves industrial purposes different from those

served by the invention which is the subject of the earlier patent; or

(b) constitutes substantial technical progress in rela- tion to the later invention.

(2) Where the two inventions mentioned in subsection (1) serve the same industrial purpose, a compulsory licence may be granted under that subsection only on condition that a compulsory licence shall also be granted in respect of the later patent to the owner of the earlier patent if he so requests.

(3) In this section, "earlier patent" means a patent granted on an earlier application or benefiting from an earlier validly claimed priority date, and "later patent" shall be construed accordingly.

(Compulsory licences for products and processes declared to be of vital importance.)

47.-(1) The Secretary may by legislative instrument direct that, for patented inventions concerning certain kinds of products, or processes for the manufacture of such products declared to be of vital importance to the defence, economic or public health interests of Ghana, compulsory licences may 'be granted.

(2) Compulsory licences with respect to any product or process specified in subsection (1) of this section may be granted at any time after the grant of the relevant patent by the Tribunal in proceedings instituted against or by the owner of patent.

Part X
Licences of Right

(Licences of right.)

54.-(1) Where a vital public interest, in particular, national security, health or the development of vital sectors of the national economy requires that one or more acts referred to in section 28 of this Law be performed with respect to a patented invention, the Secretary responsible for Justice may decide that the patented invention shall, even in the absence of the authorization of the owner of the patent, be exploited by a government agency or by a third person designated by the Secretary, subject to the payment of remuneration to the owner of the patent.

(2) The Secretary shall take his decision after consultation with the Patent Policy Committee, except in the case of national security, and after a hearing to which the owner of the patent and any licensee in particular shall be invited.

(3) Upon the Secretary taking the decision, the Registrar shall determine the amount of the remuneration to be paid to the owner of the patent, such remuneration being equitable have regard to all the circumstances of the case.

(4) The owner of the patent may appeal to the courts against the decision of the Registrar on the amount of the remuneration, but such an appeal shall not stay the effect of the decision referred to in subsection (1) of this section.