Zimbabwe could issue its first Business Method Patent on the back of a patent application for a local innovation which is also the subject of a court application. This patent application, number ZW/P/2018/25, which has already been formally examined and accepted, is for an invention in the class of business methods, titled BANKNOTE POSSESSION TRACKING AND DEPOSIT ENFORCEMENT METHODS.
Tawanda Mahanzu is the entrepreneur who has filed the patent and is challenging the tradition at the Zimbabwe Patent Office not to award patents to business method innovations. The Zimbabwe patent office also doesn’t award patents for software!
Mahanzu says of his innovation:
The invention which is the subject of a patent is a series of business processes supported by ICT systems for the banking industry which seek to eliminate physical cash shortages for an implementing bank or mobile money provider and by extension its clients.
This innovation is set to be the first to be granted a patent in the class of Business Methods is Zimbabwe. In addition it is likely to be the first purely Business Method Patent in Africa as well as among the few ones in force in the Intellectual Property World.
In Zimbabwe the Patents office Zimbabwe Intellectual Property Office (ZIPO), which is designated as the Patents Office, historically had a policy of excluding business method inventions from patentability. However, Mahanzu’s court application no HC11870/18, arising out of patent No ZW/P/2018/25, made at the Intellectual Property Tribunal of Zimbabwe, a specialised division of the Zimbabwean High Court, seeks to challenge that policy on legal grounds.
He claims that the policy is illegal in light of Patents Act Chapter [26:03] and the Constitution of Zimbabwe Section 327 as read with various treaties on intellectual property such as Article 27 of TRIPS entered into by Zimbabwe as well as other Sections such as Section 71 which outlines property rights including the right to acquire any form of property such as Intellectual Property.
The Patents Act Chapter [26:03] is the law which deals with Patents in Zimbabwe. It was enacted in 1971 and last amended in 2002.
The Intellectual Property Tribunal of Zimbabwe (IPT) itself, a creature of the Intellectual Property Tribunal Act of Zimbabwe, was recently made functional in 2017 after having been enacted in 2002. The patent community will not have to wait long to see the IPT’s response as Tribunal sits on Friday 8th of February 2019 to hear the matter.
Zimbabwe Intellectual Property Office (ZIPO) defines a patent as an official document conferring a sole right/privilege or license to an inventor for a limited period, in Zimbabwe, of 20 years. ZIPO lists certain types of inventions as unpatentable subject matter which are also listed in Section 13(1) and Section 32 of the ACT. However in addition to the above ZIPO has held Business Methods and Software to be unpatentable subject matter whereas the Patents ACT Chapter [26:03] does not take such a position.
Central to the idea of patents is the term ‘invention’ which in Zimbabwean Patent law is defined as “Any new and useful art, whether producing a physical effect or not, process, machine, manufacture or composition of matter which is not obvious or any new and useful improvement thereof which is not obvious, capable of being used or applied in trade or industry and includes an alleged invention”. The patent application which was made was for an invention which is a “new and useful art which is capable of being applied in trade”.
The court application also sets out how the Patents ACT [Chapter 26:03] provides for Business Method patents from definition of what an invention is in terms of the ACT. It argues that the ACT does not prohibit Business method patents in any way. It also argues that the ACT does not have an abstract matter exception that might be used to discourage business method patents in Zimbabwe and how even if such an exception is assumed;
It also sets out how the ACT pre-empts any judicial exception to patentability of such patents by a clause in the definition of a patentable invention reading: “whether producing a physical effect or not” which directs that patents examiners and other related authorities need not bother themselves with the determination of what may or may not be an abstract idea as the ACT does not require a physical effect or by extension a “technical effect” from an invention for it to be patentable.