Patents of Invention

– Ordinance No. 89-019 of July 31, 1989, and Decree No. 92-994 of December 2, 1992, effective December 9, 1993.

The Madagascar Industrial Property Law is currently under review to ensure compliance with the provisions of the World Trade Organization TRIPS Agreement, but the new law has not yet been enacted.

Membership in International Conventions

– Madagascar joined OAMPI on October 14, 1958, and patent rights were governed by the terms of the Libreville Agreement, which came into force on January 1, 1964. Madagascar left the OAMPI Union on December 31, 1976.
– Paris Convention for the Protection of Industrial Property, Stockholm Act, since December 21, 1963.
– Patent Cooperation Treaty (PCT), since January 24, 1978.
– Convention Establishing the World Intellectual Property Organization (WIPO), since December 22, 1989.
– WTO Marrakesh Agreement, January 1995.
– WTO’s TRIPS Agreement, since November 17, 1995.

Filing, Protection

Applicant: inventor or his successor whether a partnership, company or individual, either national or foreign. 

Naming of inventors: particulars of inventorship must be furnished in the application form. 

Novelty: prior public use or description either in writing or orally anywhere, destroys novelty.

Patentable: any new and useful invention, which is capable of at least one industrial application. 

Unpatentable: inventions contrary to public policy or morality; software; methods, systems, schemes, discoveries and scientific theories that do not provide a tangible technical solution.

Kinds of protection: (a) patents; (b) patents of addition; (c) inventor’s certificates.

Examination procedure: the law provides for examination as to both form and substance, but in practice for many years there has been formal examination only. However, in 2013 OMAPI issued several rejection notices for PCT applications with unfavorable IPRPs. The law makes no provision for responding to notices of rejection other than to file an appeal before a court of law and at present it is unclear whether the court has the power to accept amendments. The outcome of several appeals is awaited to provide further guidance in this matter. Patents are granted without any guarantee of novelty.

Amendment: is possible before grant (or rejection) provided that the scope of protection claimed is not broadened. 

Opposition: no provision.

Publication: registration of the patent is advertised in the Official Industrial Property Gazette shortly after grant. 

Beginning of protection: protection begins from the date of filing. 

Duration: fifteen years from the date of application with automatic extension of further five years upon application.

Renewal fees: annually from the date of filing, starting from the second anniversary of the filing date (first two annuities included in filing fee). There is a six-month period of grace.

Marking: not provided for. 

Assignments and licenses: must be in writing and recorded at the Industrial Property Office to be effective against third parties.

Working – compulsory licenses: any interested party may request the court to grant a compulsory license in the case where the patent is not worked within four years from the date of filing or three years from the date of grant, which ever is the later date. A compulsory license shall be granted only if the patentee is unable to give legitimate grounds for the lack of working within the country.

Infringement: a patentee may apply to a court for seizure of infringing articles, and institute an action for damages. Infringement of patent rights also constitutes a criminal offense punishable with imprisonment and/or fine.

Revocation: the competent court may annul a patent or inventor’s certificate subsequent to a request by the public prosecutor and any other person concerned.

Restoration: there is provision for requesting restoration of rights which have lapsed due to failure to comply with time limits, by reasons of force majeure.

Filing requirements for an application (to be sent to resident agent):
1. Notarized power of attorney (for PCT applications notarization is not required);
2. Specification and abstract in French in triplicate;
3. Drawings in triplicate;
4. If Convention priority is claimed, a certified copy of the basic application with French translation;
5. Notarized assignment of priority rights (in French or with French translation) in the case where the applicant in Madagascar differs from the Priority applicant(s);
6. If based on a PCT application, copies of the international publication, and search and examination reports.

For registration of assignment/license:
1. Notarized deed of assignment/license or other instrument of title in French or together with French translation;
2. Notarized power of attorney.

PCT applications: time limit for entering the national phase under PCT Chapters I and II: 30 months.