Sunday, 19 June 2011

Tribunal’s decision on non-revocation of ARIPO Patents revoked by High Court

Afro-IP has obtained a copy of a High Court ruling delivered on 1st December 2010 quashing an earlier ruling by the Industrial Property Tribunal- in which the Tribunal had declared that it had no jurisdiction to hear applications for revocation of patents granted by ARIPO. See Afro-ip’s previous post.

The High Court ruling arises from an ex-parte application filed on 15th December 2009 by Chemserve Cleaning Services limited (applicant) for judicial review of the Tribunal’s ruling. The applicant also sought an order to compel the Tribunal to reinstate, hear, and determine an application for revocation of ARIPO patent AP 773 filed on 12th April 2008.

It was expected that the High Court would consider in detail the proper interpretation of section 59 of the Industrial Property Act, in particular the extent to which the section gives national effect to patents granted by the regional organization. Surprisingly, the High court’s decision was influenced by a letter by ARIPO to the applicant pointing out that revocation of an ARIPO patent can only be pursued under the national law.

It would appear that soon after the Tribunal’s ruling, the applicant wrote to ARIPO seeking opinion whether or not ARIPO could entertain an application to revoke the patent as suggested by the Tribunal. The Tribunal had advised the applicant to file revocation proceedings in ARIPO. In response, ARIPO stated that it had no jurisdiction on the matter either, and it would seem the High Court believed the latter.

In quashing the Tribunal’s ruling the High Court observed that ARIPO’s reply “is sufficient to dispose off the question as to whether the [Tribunal] has jurisdiction or not”, and concluded that, “in view of the contents of the letter … it is evident that the [Tribunal] was in error in holding that it lacked jurisdiction”.

The order by Musinga J requires the Tribunal to reinstate, hear, and determine the application for revocation of the patent.

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