Relating to the Creation of an African Intellecutal Property Organization, Constituting a Revision of the Agreement Relating to the Creation of an African and Malagasy Office of Industrial Property
Patents shall not be issued for the following :
(a) inventions contrary to public order or morality, provided that the exploitation of the invention shall not be considered as contrary to public order or morality merely because it is prohibited by law or regulation;
1. scientific and mathematical theories ;
(c) inventions having as their object plant varieties, animal species, essentially biological processes for the breeding of plants or animals, other than micro-biological processes and the products of such processes;
(d) schemes, rules or methods for doing business, performing purely mental acts or playing games;
(e) methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods;
1. straightforward presentation of information;
2. computer programs;
(h) works of an exclusively ornamental nature.
(1) On the request of any person made after the expiration of a period of four years from the date of the filing of an application for a patent or three years from the date of the grant of a patent, whichever period expires last, a compulsory license may be granted where one or more of the following conditions are fulfilled :
(i) the patented invention is not being worked on the territory of a member State at the time the request is made;
(ii) the working of the patented invention on the above-mentioned territory does not meet, on reasonable terms, the demand for the protected product;
(iii) the working of the patented invention on the above-mentioned territory is being prevented or hindered by importation of the protected product;
(iv) by reason of the refusal of the owner of the patent to grant licenses on reasonable terms, the establishment or development of industrial or commercial activities on the above-mentioned territory is unfairly and substantially prejudiced.
(2) Notwithstanding the provisions of paragraph (1) above, a compulsory license may not be granted if the owner of the patent provides legitimate reasons for not working the invention, it being under-stood that importation shall not constitute a legitimate reason.
(1) Where a patented invention cannot be worked without infringing rights under a patent granted on an earlier application or benefiting from a validly claimed earlier priority ("earlier patent"), a compulsory license may be granted to the owner of the later patent to the extent necessary for the working of his invention, insofar as such invention constitutes an important technical advance in relation to the earlier patent.
(2) If the owner of the later patent obtains a compulsory license in accordance with the provisions of paragraph (1), above, a compulsory license may be granted to the owner of the earlier patent with respect to the later patent.
(1) The request for the grant of a compulsory license shall be made to the civil court of the domicile of the patentee or, if the latter is domiciled abroad, either to the civil court of his elected domicile or the place in which he named an agent for the purposes of filing. Only requests made by persons domiciled on the territory of a member State shall be considered.
1. The request shall contain :
2. the name and address of the petitioner;
(ii) the title of the patented invention and the number of the patent in respect of which a compulsory license is requested;
(iii) a statement of the ground or grounds specified in Articles 44 and 45, above, on which the re-quest is based and the facts justifying the grant of a compulsory license;
(iv) in the case of a compulsory license requested pursuant to the provisions of Article 44, above, a statement by the petitioner in which he undertakes to work the patented invention on the territory of one of the member States in such a way as to remedy the insufficiencies which formed the basis for the request to grant a compulsory license.
1. The request shall be accompanied :
(i) by proof that the petitioner had previously approached the owner of the patent, by registered letter, requesting a contractual license, but had been unable to obtain such a license from him on reasonable terms and within a reasonable time ;
(ii) in the case of a compulsory license requested pursuant to Articles 44 or 45, by proof that the petitioner is capable of working the patented invention.
(1) The civil court shall examine whether the request for the grant of a compulsory license satisfies the requirements of Article 46, above. If the said application does not satisfy the specified requirements, the ' court shall reject it. Before rejecting the request, the court shall inform the petitioner of the deficiencies of his request and shall allow him to make the necessary corrections.
(2) Where the request for the grant of a compulsory license satisfies the requirements of Article 46, above, the civil court shall notify the request to the owner of the patent concerned, as well as to any licensee whose name appears in the register of patents, and shall invite them to submit their observations on the said request in writing within a period of three months. Such observations shall be communicated to the petitioner. The civil court shall likewise notify the request to any Government authorities concerned. The civil court shall hold a hearing on the request and the observations received, to which the petitioner, the owner of the patent, any licensee whose name appears in the register of patents and any Government authorities concerned shall be invited. (3) Once the procedure prescribed in paragraph (2), above, has been completed, the civil court shall take a decision on the request, either granting or refusing the compulsory license.
(4) If the compulsory license is granted, the decision of the civil court shall lay down :
(i) the scope of the license, specifying, in particular, the acts referred to in Article 1(2) of the present Annex to which it extends and the period for which the license is granted, it being understood that a compulsory license granted under the provisions of Articles 44 or 45, above, may not extend to the act of importation;
(ii) the amount of the remuneration to be paid by the licensee to the owner of the patent; in the absence of agreement between the parties, such remuneration shall be equitable with due regard to all the circumstances of the case-
(5) The decision of the civil court shall be in writing and shall state the grounds on which it is based. The civil court shall convey the decision to the Organization, which shall register it. The civil court shall publish the decision and shall notify it to the petitioner and to the holder of the patent. The Organization shall notify any licensee whose name appears in the register of patents of the decision.
(1) After the expiration of the time limit for appeal specified in. Article 51 of the present Annex, or once an appeal has been disposed of by upholding, in whole or in part, the decision by which the civil court granted the compulsory license, the grant of the latter shall authorize its beneficiary to exploit the patented invention according to the terms fixed in the decision of the civil court or in the decision on appeal, and shall require him to pay the remuneration fixed by the aforementioned decision.
(2) The grant of a compulsory license shall not affect either license contracts in force or compulsory licenses in force and shall not preclude the conclusion of other license contracts or the granting of other compulsory licenses. However, the patentee may not grant to other licensees more favorable terms than those of the compulsory license.
(1) The beneficiary of the compulsory license may
not, without the consent of the owner of the patent, grant permission to any third person to perform any of the acts which he is authorized to perform under the compulsory license.
(2) Notwithstanding the provisions of paragraph (1), above, a compulsory license may be transferred together with the establishment of the beneficiary of the compulsory license or with that portion of his establishment which exploits the patented invention. No such transfer shall be valid without the authorization of the civil court. Before granting the authorization, the civil court shall give the owner of the patent an opportunity to be heard. The civil court shall notify the authorization to the Organization, which shall register and publish it. Any transfer authorized shall cause the new beneficiary of the compulsory license to accept the same obligations as those which devolved upon the former beneficiary.
(1) On the request of the owner of the patent or the beneficiary of the compulsory license, the civil court may amend the decision on the grant of a compulsory license to the extent that new facts justify such amendment.
(2) On the request of the owner of the patent, the civil court shall withdraw the compulsory license :
(i) if the grounds for its grant have ceased to exist ;
1. if the beneficiary exceeds the scope of the license pursuant to Article 47( 4 )(i), above ;
2. if the beneficiary is in arrears of payment of the remuneration pursuant to Article 47( 4)(ii), above.
(3) Where the compulsory license is withdrawn under the provisions of paragraph (2)(i) above, a reasonable period shall be granted to the beneficiary of the compulsory license to enable him to cease working the invention in cases where immediate cessation would have serious consequences.
(4) The provisions of Articles 46 and 47 of the present Annex shall apply to the amendment or withdrawal of a compulsory license.
(1) The owner of the patent, the beneficiary of a license whose name appears in the pertinent register or any person having requested the grant of a compulsory license may, within the period of one month dating from the publication specified in Article 47(5),49(2) or 50(4), above, appeal to the competent higher jurisdiction against a decision taken within the terms of Article 47(3), 49(2) or 50, above.
(2) The appeal referred to in the preceding paragraph and contesting the grant of a compulsory license, authorization to transfer a compulsory license or the amendment or withdrawal of a compulsory license, shall have a staying effect.
(3) The decision on appeal shall be notified to the Organization, which shall register and publish it.
(1) Any beneficiary of a contractual or compulsory license may, by registered letter, summon the owner of a patent to bring the necessary legal actions for civil or penal sanctions for any violation, indicated by the said beneficiary , of the rights conferred by the patent.
(2) If, within three months of the summoning specified in the preceding paragraph, the owner of the patent refuses or fails to institute the actions referred to in the said preceding paragraph, the beneficiary of a license which has been registered may institute the actions in his own name without prejudice to the owner's right to intervene in the actions.
Any action for nullity of a patent shall be directed against the patentee. If a final legal judgment declares the nullity of the patent, the beneficiary of the compuIsory license shall be freed from all the obligations resulting from the decision granting him the compuIsory license.
Licenses of Right
(1) Any owner of a patent not precluded by the terms of any previously registered license from granting further licenses may apply to the organization to have, in respect of his patent, the mention "licenses of right" entered in the register. The mention shall be entered in the register and this fact shall be published by the Organization as soon as possible.
(2) The entry of this mention in the register shall entitle any person to obtain a license to exploit the said patent upon such terms as shall, in the absence of agreement between the interested parties, be fixed by the civil court.
(3) The owner of the patent may, at anytime, apply to the Organization to cancel the entry "licenses of right." If no license is in force, or if all the licensees agree thereto, the Organization shall cancel the entry after payment of all fees which would have been payable had the entry not been made in the register.
(4) The provisions of Article 26(1) of the present Annex shall also apply to licenses of right.
(5) The grantee of a license of right may neither assign it nor grant sublicenses under it.
Ex Officio Licenses
(1) Notwithstanding the provisions of Articles 44 to 52, an ex officio license may be obtained at any time for the exploitation of a patented invention of vital importance to :
1. national defense;
2. public health;
(c) the national economy, provided that in this latter case, the protected article manufactured on the territory of the member State in question cannot be obtained on reasonable terms and in sufficient quantities.
(2) In the cases provided for in paragraph 1(a) and (b), an ex officio license may even be obtained for importation.
(1) A member State may, at any time, for the requirements of national defense, obtain a license for the exploitation of an invention which is either the subject of a patent application or a patent.
(2) The exploitation mentioned above may be undertaken by the member State itself or on its behalf.
(3) The aforementioned license shall be granted on the request of the Minister responsible for national defense by a text issued by the Minister responsible for industrial property, in which shall be laid down the terms of the said license with the exception of the conditions concerning the payment of remuneration for the license.
(4) The license shall have effect from the date upon which the application was made.
(5) In the absence of agreement between the interested parties, the amount of remuneration mentioned under paragraph (3), above, shall be fixed by the court.
(6) At all stages of the procedure in regard to the grant of the aforementioned license, persons having know ledge of the said procedure shall be compelled to secrecy.