South Africa: Patents: ARIPO Or OAPI…What Is The Difference?

Last Updated: 28 June 2019
Article by Annelise Engelbreg

Filing patents in Africa is often perceived as a minefield of different regional and national laws, whilst it is in fact relatively simple. There are two regional patent offices, covering different territories in Africa, and in most other countries patent protection is regulated by their respective national patent laws.

The two regional patent offices are ARIPO (African Regional Intellectual Property Organization) and OAPI (Organisation Africaine de la Propriété Intellectuelle), and the main differences are set out below.

ARIPO (18 countries)

OAPI (17 countries)

Patent Law & Regulation

ARIPO is mandated to grant patents on behalf of the Harare Protocol Contracting States in accordance with the provisions of the Harare Protocol on Patents, Designs and Utility Models.

However, ARIPO member states also have their own IP legislation that coexist with the Harare Protocol.

OAPI deals with patents under the Bangui Agreement. The Bangui Agreement also deals with Utility Models, Trade Marks and Service Marks, Industrial Designs, Trade Names, Geographical Indications, Literary and Artistic Property, Unfair Competition, Topographies of Integrated Circuits, and Plant Varieties.

Unlike in ARIPO, OAPI member states do not have their own Intellectual Property legislation.

Member states

Botswana, Eswatini (formerly Swaziland), Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Sierra Leone, Sudan, Tanzania (mainland), Uganda, Zambia and Zimbabwe

When filing an ARIPO application, desired states can be designated and application fees are payable only for those designated states.

Benin, Burkina Faso, Cameroon, Comoros, Central African Republic, Chad, Congo, Republic, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Senegal and Togo.

When filing an OAPI application, all the member countries are automatically included and designation of only certain countries is not possible.

Novelty

Absolute novelty. However, there is a 6-month grace period after disclosure at an official or officially recognised international exhibition.

Absolute novelty. However, there is a 12-month grace period after disclosure at an official or officially recognised international exhibition or when such a disclosure was made in bad faith by any third party.

National Phase filing deadline

31 months

30 months

Filing Requirements (National Phase application)

Power of Attorney (simply signed)

Specification, claims and abstract in English

Formal drawings, if applicable

Sequence listing, if applicable

PCT International Publication

International Search Report

International Preliminary Examination Report

International Patent Classification

Power of Attorney (simply signed)

Specification, claims and abstract in English or French

Formal drawings, if applicable

Priority Assignment

Priority Document

Sworn Translation of Priority Assignment and Priority document if not in English or French.

Certified priority document (if not lodged in the international phase)

PCT International Publication

International Search Report

International Preliminary Examination Report

International Patent Classification

Excess filing fees

Excess claim fees payable on grant for claims over 10

Excess claim fees for claims over 10 and page fees for specification pages over 10 payable on filing of application. Filing fees can quickly become exceptionally high.

Examination

Substantive examination is carried out. Request for search and examination must be filed within three years from the filing date. This three-year time period is calculated from the international filing date in the case of a PCT application designating ARIPO.

Currently only formal examination. However, the revised IP Law of OAPI, the Bangui Agreement will provide for substantive examination. The revised Bangui agreement, has been made available to the public, but has yet to enter into force, as it requires ratification by 12 member states before it can be enacted, and so far, only 7 member states have done so. Uncertain when substantive examination will be implemented.

Types of patents

Patents for inventions (Convention, non-convention, national phase)

Divisional patents

Utility models

Patents for Inventions (Convention, non-convention, national phase)

Divisional patents

Patent of Addition

Utility models

Other types of IP

Trademarks

Copyright

Designs

Plant Breeders' Rights

Trademarks

Copyright

Designs

Plant Breeders' Rights

The above is merely a summary of some of the main differences between ARIPO and OAPI. Please contact us for more detail on these applications and the respective costs.

Further, when filing patents in Africa, in addition to the two regional systems discussed above, popular territories to consider remain South Africa, Nigeria and Kenya.

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.

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