Theft is rampant in our everyday lives; not just theft of our material and tangible property but our intellectual property. Our ideas and concepts when brought to fruition are susceptible to being stolen and passed off as belonging to someone else. This is why the patent laws are enacted; to protect a person’s idea or process when turned into an invention. Patent Laws are recognized worldwide and are similar although some differences exist from country to country.
What is a patent?
In Ghana, the Patent Act, 2003 (Act 657) governs the granting of patents to inventors and the procedures involved. It defines a patent as the title granted to protect an invention. A more elaborate definition is that, “A patent is a limited monopoly granted by a government in return for the disclosure of technical information”. In this situation, an individual is given an exclusive right to control the way their patented invention is exploited for a specific period in exchange or return for the disclosure of technical in relation to how their invention can be used by a person who has the requisite skills and knowledge needed to work that invention. Act 657 further requires the invention to be one which provides a solution to a problem in the field of technology which implies that it is not all inventions that can be protected by a patent. Furthermore, it may be in the form of a product or a process.
Matters that cannot be patented
Flowing from this, Section Act 657 has categorically stated a number of inventions that will not be granted patent protection. These are, among others, as follows:
- discoveries, scientific theories and mathematical methods;
- schemes, rules or methods for doing business, performing purely mental acts or playing games;
- methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practised on the human or animal body;
- biological processes for the protection of plants or animals other than non-biological and micro-biological processes.
What then is required for an invention to meet the standards for patent protection?
The invention must be new, involve an inventive step and be industrially applicable. This is what the Patent Act of Ghana will consider patentable.
In the United States of America, for an invention to be patent protected, it must meet the following tests:
- It should be able to be used.
- A clear description of how to make and use the invention must be given.
- It should be new, or “novel”.
- It should not be obvious.
These requirements are clearly not so different from the Ghanaian law which illustrates the international standard of patent protection.
Who has the right to the patent?
Naturally, the right to the patent belongs to the inventor. Where two inventors have jointly made an invention, then it shall belong to them. However, where two inventors make the same invention independent of each other, the inventor whose application has the earliest filing date shall have the right to the patent.
Also, in a situation where the inventor makes the invention in the course of his employment, the employer shall have the right to the patent unless there exists a contract that states otherwise.
Rights conferred to the owner of the patent
Act 657 gives a patent owner a 20-year monopoly over the invention. After 20 years, the invention can be exploited by anybody without the consent of the owner. However, within that 20-year period, before an individual can exploit the patented invention by means of selling, stocking the product, or using the process, he shall require the owner’s consent. Where the owner’s consent is not sought, the owner may institute court proceedings against any person who infringes on the patent owner’s right to exclusive exploitation.
Infringement as an offence
Owing to the rights conferred on the owner of a patent, Act 657 makes it an offence for a person who knowingly performs any act of infringement in the country without the consent of the owner. Such a person, if found guilty, will be liable to a fine not exceeding two thousand penalty units or to imprisonment for a term not exceeding two years.
Conclusion
Patent protection is not automatically granted to any new piece of invention. The inventor must take the requisite steps of applying for registration of the patent to demonstrate that the invention meets the standard for patent protection.
By: Maria Mbroba Biney
