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19-Sep-2020 20:59

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This is the case in France, the Netherlands, Nigeria, OAPI and South Africa, for instance.This "registration" approach means much fewer resources need to be invested in patent offices - for instance, there is no need for technically qualified patent examiners.

When it is fairly certain that the patent is invalid, a patent can be challenged in a different way, for example, by going ahead and manufacturing or using the product anyway, and waiting for the patent holder to sue. Patent holders have to take action if they wish to protect their rights.

One of the biggest practical problems in determining whether a patent is likely to be valid or not is the very limited number of people qualified to do so. Although a person skilled in the art is supposed to be able to understand the patent description, it is the claims provided at the end of the patent document (see Annex B) that are judged when deciding if the patent is valid or not.

These may only be understood by patent examiners, lawyers and judges.

We discovered cases where a patent had been granted quickly by OAPI, for example, but the corresponding patent in EPO had either been limited compared to the OAPI patent or even refused altogether.

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The particular way in which the validity of a patent can be challenged is determined by national law. Article 32 of the TRIPS Agreement requires an opportunity for judicial review of any decision to revoke or forfeit a patent.These sorts of things happen frequently in industrialised countries.

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