Patentable Inventions

The main legislation in Tanzania is the Patents Act, 1987. In addition, there are Patents Regulations (Government Notice No. 190 of 1994). The main legislation in Zanzibar is the Zanzibar Industrial Property Act, 2008 and the Industrial Property Regulations, 2014. Tanzania is a party to the following international conventions: 

• World Intellectual Property Organization Convention, 1967 (effective for Tanzania as from 30 December 1983);
• Paris Convention (International Union) 1883–1967 (effective for Tanzania as from 16 June 1963);
• Patent Cooperation Treaty (PCT) 1970 (effective for Tanzania as from 14 September 1999);
• Agreement on the Creation of the African Regional Industrial Property Organization, 1979 ((effective for Tanzania as from 12 October 1983);
• The Protocol on Patent and Industrial Designs within the Framework of African Region Industrial Property Organization (the Harare Protocol), 1982) (effective for Tanzania as from 01 September 1999); and
• Agreement on Trade Related Aspects of Intellectual Property Rights (Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization), 1994.

The patents of invention that can be protected in Tanzania are the national patent, ARIPO patent and PCT patent. United Kingdom patent and European patent designating United Kingdom is protected in Zanzibar subject to fulfilling local registration requirements. The total protection period in Tanzania is twenty years, subject to the payment of annual fees. Ten years are given at the time of grant of patent and, afterwards, extension of five years can be made twice. The protection period in Zanzibar is twenty years. Foreigners may obtain the same protection as nationals of Tanzania. Applicants not residing in Tanzania must appoint a patent attorney domiciled in the country, to represent the applicant before the Patent Office. Foreign parties may pay the required fees only through a patent agent domiciled in Tanzania.

An invention is patentable if it is new, involves an inventive step and is industrially applicable. The invention must provide new solution to a specific problem in the field of technology and may relate to a product or process and must be susceptible of industrial application. An invention is deemed to have based on an inventor’s activity if, having regard to the state of the art, it is not obvious to a person skilled in the art. An invention is capable of industrial application if according to its nature, it can be made or used, in the technological sense in any kind of industry, including agriculture, fishery and services. The following are not deemed inventions and therefore cannot be patented under the Patents Act (patentability being excluded only in so far as a patent of invention relates to the following items): 

• Discoveries, and scientific and mathematical theories;
• Plant or animal varieties or essentially biological processes for the production of plants or animals, other than microbiological and the products of such processes (As pointed out above, plant varieties are however patentable under the new legislation on plant breeders’ rights);
• Schemes, rules or methods for doing business, performing purely mental acts or playing games;
• Methods for the treatment of the human or animal body by surgery or therapy, as well as diagnostic methods (this does not apply to products for use in any of those methods);
• Mere presentation of information;
• Though not specifically mentioned in the Patents Act, computer programs as such cannot be patented, but may be protected under the copyright law, namely, and Copyright and Neighboring Rights Act, 1999 (Chapter 218 of the laws of Tanzania). Computer related inventions, namely, inventions involving the use of a computer program, may not be patentable because of lack of the required technical nature as referred to above; however, steps of a measuring process may be patentable even if they can be realized by a computer program, and also a computer for performing a technical task may possibly be patentable as equipment even if some units of same can be realized by a computer program as well. Computer programs are specifically covered under Copyright and Neighboring Rights Act, 1999. Under this Act, all forms of computer programs and the related documents, whether recorded as source code, object code, or in any other form; including user programs and operating systems may be protected. Protection also applies to the idea, principle, concept, procedure, method of operation or mathematical operation on which the software interface is based or to the adaptation of an original program language to a different program language. The economic rights pertaining to software are transferable. To be eligible for protection by copyright a computer program should be individual and original. Under the Tanzanian copyright law works are protected which are first made public in Tanzania, or which are made by a Tanzanian citizen irrespective of where the work was first made public. Works of foreigners not first made public in Tanzania may be protected on the basis of an international convention on copyright or on the basis of a bilateral treaty or on the basis of reciprocity. Since 1999 copyright protection in Tanzania will last until 50 years after the author’s death. Tanzania is a member of the Berne Convention for the Protection of Literary and Artistic Works of 1886 as revised at Paris in 1971.
• Inventions if published or use of which would be contrary to public order or morality; however, the use of an invention may not be deemed contrary to public order only because it is prohibited by law or regulation; and
• Inventions that have been temporarily excluded by the Minister from patentability through statutory instruments. The exclusion from patentability cannot exceed ten years. 

An invention is new if it is not anticipated by prior art. Prior at is deemed to comprise everything made available to the public anywhere in the world, before the filing or priority date, through written description or oral information, by use or in any other way (absolute novelty requirement). Prior art is also deemed to comprise the contents of patent applications and utility model applications filed in Tanzania before the filing or priority date and published after that date. Furthermore, prior art is deemed to comprise the contents of international patent and utility model applications filed under the PCT or a ARIPO Application designating Tanzania, provided that the national phase of PCT applications before the Patent Office has been properly entered into. The contents of earlier applications as mentioned in the foregoing paragraph are of relevance only for the determination of the novelty of an invention, and not for deciding upon whether the invention is based on an inventive step. Not bars to novelty are disclosure of the invention within six months preceding the priority date in consequence of: (a) an abuse of the rights of the applicant or his legal predecessor(s); and (b) display of the invention within six months preceding the priority date by applicant or his legal predecessor(s) at an official or officially recognized international exhibition. 

The right to a patent belongs to the inventor. If two or more persons have jointly made an invention, the right to the patent belongs to them jointly. If and to the extent to which two or more persons have made the same invention independently of each other, the person whose application has the earliest filing date or, if priority is claimed, the earliest validly claimed priority date, and leads to the grant of a patent, have the right to the patent. The inventor must be named as such in the patent unless, by way of special written declaration addressed to the Patent Office he indicates that he wishes not be named. A promise or undertaking by an inventor to any person to the effect that he will make such a declaration has no legal effect. The right to a patent may be assigned, or transferred by succession. 

In the absence of contractual provisions to the contrary, the right to a patent for an invention made in execution of a commission or of an employment contract belongs to the person having commissioned the work or to the employer. If the invention is of very exceptional importance, the employee have a right to equitable remuneration and in the absence of any agreement, equitable remuneration to be granted to employee is fixed by the court. If the employment contract requires the employee to exercise any inventive activity, the patent belongs to him unless the employee has made the invention by using data or means available to him through his employment. Where the employment contract requires the employee to exercise any inventive activity, the employee have a right to equitable remuneration taking into account the importance of the invention and any benefit derived from the invention by the employer. Again, in the absence of any agreement, remuneration to be granted to employee is fixed by the court. The advantages conferred on the inventor who makes invention in the course of employment cannot be diminished by contract. 

Where a patent is owned by two or more patentees, each of them may dispose of his share independently from the other(s). In the absence of agreement to the contrary, where joint owner is transferring his interests, the other joint patentee has no right of pre-emption. Each joint patentee may exploit the patent by himself, and is not obliged to give appropriate remuneration to the other joint patentees in proportion to their shares. In the absence of agreement to the contrary, the shares of joint patentees are considered to be equal. If one of the joint patentees renounces patent protection, the rights of the other joint patentees remain in proportion to their own shares. Each joint patentee may take steps, also individually, in order to maintain and protect the patent rights, but in such a case the other joint patentees are obliged to bear part of the costs in proportion to their shares. It is possible for a court to order penalty by way of sanctioning transfer of the relative share in the patent rights to the patentee(s) who paid the costs. If a joint patentee acts independently to maintain and protect patent rights, or if proceedings have been instituted against only one or some of the joint patentees, one patentee may require the other joint patentee to join the proceedings. The grant to a third party of a license for the exploitation of the patent is only possible by a joint act of the joint patentees. 

The ownership of a patent belongs to the inventor or his successor in title, for example, assignee (an individual, body corporate, or State). Where the person applies for the grant of a patent has obtained the essential elements of the invention from the invention of another person, that person must, unless authorised by that other person, assign to that other person the application or, where the patent has already been granted, the patent. If the subject of a patent application or a patent has been taken unlawfully from the invention of another party, such third party or his successor in title may, in addition to ownership of a patent, claim compensation for damages on the basis of contractual or tortious liability.