Patents are public documents, issued to inventors by individual states, certifying that the named inventor has been granted a limited monopoly to exclude other persons from working, selling or using an identified invention without the consent or permission of the inventor or her/his assignees or successors-in-title during the lifespan of the patent. The regime of patents is built on the theoretical assumption that in exchange for a limited monopoly over a fixed period an inventor discloses the knowledge embodied in an invention to the state in trust for the public. Key to this assumption is that society has a system in place in which experts in the respective fields to which the inventions pertain have the capacity to:
- Evaluate the merits of the claimed invention in terms of the well-established criteria for patentability, namely: novelty, ingenuity, industrial applicability and compatibility with accepted subject-matter classification (Mueller and Chisum, 2008).
- Collate patent applications and systematically organise the documents in such a manner that: they can be used as a reference body of knowledge both for the purposes of assessing whether subsequent patent applications have not been pre-empted by information in the public domain and to increase the general stock of knowledge in the public domain; and they can be made accessible to interested stakeholders for the purposes of spurring innovation.
The central question of the research study described in this chapter was whether patent systems in African states have the capacity to perform the two aforementioned functions. This question has its foundation in what is the raison d’être of the patent system: the system’s need to facilitate the exchange of valuable information between inventors and society. The bargain or contract between a patentee and society operates on the theoretical premise that in exchange for a limited monopoly on use of an invention for 20 years, society has access to the ingenious information embodied in that invention. This research sought to find out whether this theory is supported by the reality of patent offices in Africa, i.e. do patent offices in the continent function as they should?