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Diogo Antunes, IP Legal Consultant

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Diogo Antunes, IP Legal Consultant

Diogo Antunes is an IP Legal Consultant at Inventa International, he has a law degree, he is post-graduated in Intellectual Property and he is currently attending a master's degree in Intellectual Property. His practice in IP involves trademark prosecution and litigation for the Africa department.

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OPINION

Why is it more important than ever to invest in patent protection in Angola?

Over the past four years, Angola has been trying to get out of the deep crisis that has plagued the country. With the fall in oil prices, the economy has shaken and the stability of companies has never been the same. The Angolan economy was supported substantially by Petroleum. This is evident when we look at the 3600 patent applications in Angola, which mostly belong to the petroleum sector. The current President of Angola, João Lourenço, took office on September 26, 2017, with the awareness of the serious problems facing the country. It has already been realized that the sustainability of an economy based on petroleum has its days counted, and there is not much time until the automotive sector joins in mass to the electrical systems. Angola is a country endowed with enviable resources, from agriculture, fishing, and forest resources, to minerals. The president of the African Development Bank said that the economic diversification of Angola does not imply an increase in public spending but rather the creation of conditions conducive to the entry of private companies in the most varied sectors of activity. Tourism will be one of the major markets in the future, where there is currently no strong competition due to difficulties in obtaining visas and accessibility to tourist areas. Presidential Decree 56/18, which entered into force on 30 March, simplifies the obtainment of tourist visas for all European Union citizens, the United States of America, China, Brazil, Russia, Argentina, Australia, Canada and many other countries around the world. It also establishes the exemption of tourist visas for citizens of Botswana, Mauritius, Seychelles, Zimbabwe, and Singapore. In addition to these countries, it should not be forgotten that the citizens of South Africa and Mozambique enjoy the same exemption. This recent measure indicates the beginning of a tourist and infrastructure operation about to burst. The exploitation of new sectors is a good investment opportunity for companies. Another important factor for the economy is the new bill on foreign investment, that is currently under discussion. The current law No. 14/15 establishes a tight requirement for foreign companies, namely the obligation of an Angolan citizen or an Angolan company to hold 35% of the capital and to effectively participate in the management of the project. The new bill, which aims to replace the old one, will eliminate this requirement with the aim of attracting foreign investment to improve the national economy. Alongside this law, there are others in development to make foreign investment sustainable and beneficial. President João Lourenço assured that the Angolan State will proceed with security to the repatriation of dividends and physical assets of the entrepreneurs willing to invest in Angola. The Industrial activity is regulated by Law no. 5/04 of September 7. Article 5 establishes that the exercise of industrial activity requires authorization from the government body that oversees the industry sector. However, authorization may be rejected only on grounds of public safety, environmental protection, public health, public interest, or urban planning. The broadest and most uncertain criterion concerns the public interest, which may serve to justify any disavowal, and this is where the Government must enter, warning that this clause should only be used in special cases in order not to frustrate the foreign investment of industrial activities which are very important for the renewal of the Angolan economy. The Ministry of Industry is responsible for operating the system of industrial property in the country, in accordance with Article 2 of Presidential Decree No. 42/18, which establishes the Organic Statute of the Ministry of Industry. In the same law we analyze that the Angolan Institute of Industrial Property (IAPI) is an organ subject to oversight by the Ministry of Industry. The capture of foreign investment to boost the different sectors of the Angolan economy forces the Ministry of Industry to increase efforts so that it can build a viable environment for the entrepreneurs and their investments, without neglecting the protection of their intellectual assets. Considering the aforementioned, where do patents take part in the diversification of the Angolan economy? It seems to us that patents and industrial property in general are related to developing economies in two ways. The first is the urge to protect national inventions, which will certainly come from the multifaceted expansion of industry. The second aspect concerns the protection of the intellectual assets of foreign companies. By not protecting inventions, foreign companies face higher risks taking into account the current state of the Angolan Economy and IP Law. This means more cases of counterfeiting, use, and exploitation of products and processes protected by patents in other countries, making it impossible for companies with substantial financial and human capital to contribute to the economy, due to the fact that they are not effectively protected. The protection, conferred by a patent in Angola, allows the holder to export and produce products directly, or through intermediaries with the certainty that his invention is protected in national territory. In addition, holders will find themselves in a favorable position to negotiate the licensing of their patents if they do not want to exploit directly in Angolan territory, which adds value to the company’s portfolio. The Constitution of the Angolan Republic raises Intellectual Property to a Constitutional Right by establishing its protection in Article 42. At the infra-constitutional level, the protection conferred on inventions by patents is provided for in Industrial Property Law No 3/92 of 28 February 1992. The patentability requirements correspond to the classics: the invention must be new, involve an inventive step, and has to be susceptible of industrial application. The duration of the protection shall be 15 years from the date of deposit in accordance with Article 6.   Article 4 sets out inventions which cannot be patentable: a) The inventions whose use would be contrary to public policy and morality, as well as to public health and safety; b) Conceptions devoid of practical reality or not capable of being industrialized by mechanical or chemical means, as well as scientific principles and discoveries; c) Financial plans or programs, credit operations and game rules; d) Food, chemical, and pharmaceutical products and medicinal products intended for humans or animals, but the apparatus or processes of manufacture may be patented. Subparagraph (d) is very damaging to the pharmaceutical industry, as it is only safeguarded regarding the manufacturing process of medicinal products.   Angola does not belong to any regional intellectual property organization, which means that it does not belong to ARIPO or OAPI. In this sense, it is necessary to submit the request in Angola through the national route or by entering the PCT national phase. Another useful piece of information we should add is the fact that IAPI is currently issuing notifications for payment of substantial examinations of patent applications. Although some requests have been made more than eight years ago, it seems to us to be a fact that it contributes to a strengthening of the protection of Intellectual Property Rights in Angola. In short, Angola is in a development phase that essentially involves private investment. In order to attract private investment, it is necessary not only legal certainty, but also the facilitation of all necessary documentation for the initiation of a project. At the same time, private investment brings problematic Intellectual Property issues, like the use of patented products and processes abroad that were not adequately protected in Angola. That is why we believe that companies now have every interest in protecting their inventions in Angola so that they can invest in the country without any kind of hindrance or problem. This symbiotic relationship between private investment and the protection of intellectual assets should not be overlooked. The current Angolan government has taken steps to ensure that these investments are carried out safely. After the devastating crisis of the Oil Industry encouraging private investment in other sectors will provide better conditions for companies. In addition, the actions that IAPI has developed will certainly give more confidence to applicants seeking to protect their intellectual assets.  [m1]

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