Patents of Invention
– Industrial Property Act, 2012, in force since August 1, 2018.
– Industrial Property Regulations, No. 113 of 2018.
Note: the new Act provides for the registration and protection of patents, utility model certificates, industrial designs, trademarks, collective marks, certification marks and trade names.
Membership in International Conventions
– Convention Establishing the World Intellectual Property Organization (WIPO), since December 23, 1991.
– WTO’s TRIPS Agreement, since January 1, 1995.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since January 30, 2001.
– Paris Convention for the Protection of Industrial Property, Stockholm Act, since January 1, 2004.
– Patent Cooperation Treaty (PCT), since January 1, 2004.
– ARIPO, Harare Protocol on Patents and Industrial Designs, since April 23, 2004.
Applicant: the inventor either alone or jointly with one or more other persons, or an assignee, whether an individual, firm or company.
Naming of the inventor(s): the inventors must be named in the patent.
Types of patents: patent of invention and ARIPO patent designating Namibia.
Novelty: absolute novelty is required.
Novelty grace period: novelty will not be destroyed if the disclosure of the invention to the public occurred not earlier than six months preceding the filing date or where applicable the priority date, and it was as a consequence of acts committed by the applicant or his predecessor in title; or an abuse committed by a third party with regard to the applicant or his predecessor in title.
Exceptions to protection: the following is not patentable: (a) a discovery; (b) a scientific theory; (c) a mathematical method; (d) a literary, dramatic, musical or artistic work or any other aesthetic creation; (e) a scheme, rule or method for performing a mental act, playing a game or doing business; (f) a program for a computer; (g) the presentation of information; (h) an invention the publication or exploitation of which would be generally expected to encourage offensive or immoral behaviour; (i) any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process; (j) a method of treatment of the animal or human body by surgery or therapy; (k) human body and all its elements; (l) the whole or part of natural living beings and biological materials found in nature, even if isolated or purified; (l) new uses, methods of use, forms, properties of a known product or substance, except where qualities are altered or use solves a technical problem that did not previously have an equivalent solution; (m) new use of a known process, machine or apparatus unless it results in a new product or employs a new reactant; (n) an invention which, or the use of which, is contrary to law, public order or good morals.
Priority: Paris Convention applies. An invention claimed may have more than one priority date.
Filing requirements for an application (to be sent to authorized agent):
1. Application Form P1, signed by an agent;
2. Declaration and power of attorney (Form G2), simply signed;
3. Specification, claims and abstract in English;
4. Drawings (if applicable);
5. Assignment of invention (if applicable);
6. Certified copy of priority document, if priority claimed, with verified English translation (if applicable).
PCT applications and ARIPO applications: time limit for entering national phase directly in Namibia under both Chapters I and II is 31 months and through ARIPO (designating Namibia) under both Chapters I and II is 31 months.
Minimum requirements to obtain a filing date:
1. Application Form P1, signed by an agent;
2. Specification, claims and drawings (if applicable);
3. Payment of application fee.
Terms for filing the missing documents: power of attorney and assignment of invention to be filed within sixty days and priority document to be filed within ninety days.
Electronic filing: not available in Namibia.
Examination, Granting, Protection
Examination: formal examination is undertaken after filing, substantive examination is to be undertaken by an external search and examination authority.
Amendments: the applicant may amend or correct the application at any time. Amendments may not go beyond the disclosure in the application as initially filed.
Divisions: divisional applications may be filed at any time before grant.
Publication – granting: where all the requirements are satisfied, a patent is granted and published in the Bulletin of Industrial Property.
Duration: twenty years from the date of filing. For patents granted prior to August 1, 2018, the duration is fourteen years from the filing date.
Supplementary Protection Certificates for pharmaceuticals or plant protection products: not provided for.
Annuities: must be paid annually on each anniversary of the filing date.
Annuity grace period: there is a six-month grace period for the late payment of an annuity on payment of a surcharge.
Transition provisions: for patents filed prior to August 1, 2018, the patent or patent application remains in force for the unexpired three, seven or ten-year term provided for under the old Act, thereafter the renewal fees are due annually on the anniversary of the filing date.
Amendments of issued patents: amendments may be filed after grant, claim amendment must fall wholly within the scope of a claim before amendment. Advertised and open to opposition.
Restoration: a patent, which has lapsed due to non-payment of renewal fees, may be restored if the failure to pay the fee was unintentional and there was no undue delay in applying for restoration.
Assignment and licenses: must be registered to be effective against third parties.
Working: the actual working of an invention is required. Non-working of a patent in Namibia could lead to the grant of a compulsory license, or to cancellation.
Marking: is not compulsory, but it is advisable.
Modification of Protection after Registration
Opposition to granted patents: no provision for opposition to a granted patent.
Cancellation – nullification: any interested person may request the total or partial nullification of a granted patent with the High Court at any time during the lifetime of the patent.
Compulsory licenses: a compulsory license may be granted if a patent has not been sufficiently worked after the expiration of four years from the date of filing. A compulsory license may also be granted in the public interest or for the exploitation of an interdependent patent.
Infringement and penalties: making, using and exercising a patented invention or selling a patented product in Namibia without the consent of the owner of the patent is considered infringement. Available remedies include an interdict, delivery up and award of damages.