Three types of patent in the Democratic Republic of the Congo explained

The Democratic Republic of the Congo’s Industrial Property Law has been in force since 1982. Article 5 stipulates that there are three kinds of patent:

• ‘invention patents’, which primarily cover inventions that, on the date of filing or of priority of the related application, have not yet been patented;
• ‘import patents’, which cover inventions for which, on the date of filing or of priority of the related application, the owner has already obtained an invention patent in a foreign country; and
• ‘improvement patents’, which cover any improvement of an already patented invention.

However, the law fails to mention whether improvement patents can be filed by several entities.

Article 37 states that the validity period for import and improvement patents ends at the same time as the primary patent period.

"If the invention covered by an import patent has already been exploited abroad, exploitation in the Democratic Republic of Congo must occur within two years from the filing of the application."

The law also imposes a legal obligation to exploit a registered patent, or else risk the loss of rights. This must take place within a period of:

• five years from the filing of the application or three years from the grant of the patent, whichever expires last, in the case of a primary or improvement patent;
• four years from the date of grant for drug-related patents, in the interests of public health; and
• three years from the filing of the application, in the case of an import patent.

If the invention covered by an import patent has already been exploited abroad, exploitation in the Democratic Republic of Congo must occur within two years from the filing of the application.

With regard to non-voluntary licences, Article 76 states that “the holder of a non­voluntary license shall not have any rights in the improvement patents attached to the original patent which is the subject of the non­voluntary license”.

The Democratic Republic of the Congo’s patent regime is favourable for those that want to protect their inventions. Applicants have a range of options when it comes to filing, including obtaining a patent with improvements rather than the primary patent or filing a patent granted in another country despite the loss of priorities granted by the Paris Convention and the Patent Cooperation Treaty system.

This is a co-published article, which was originally published in the World Trademark Review (WTR).