Inventa International reports on the COVID-19 measures in Angola and Mozambique and their impact on IP law and practice.*
In response to the global COVID-19 pandemic, the President of the Republic of Angola declared a state of emergency for 15 days, starting from March 27. Following this declaration, exceptional measures were implemented by the Presidential Decree no. 82/20 (March 26). According the decree, certain rights and freedoms such as property rights and the freedom of movement were restricted. Furthermore, public services were closed, except for the essential ones.
The Angolan Patent and Trademark Office announced on March 24 that it will temporarily suspend operations from March 27, for a period of 15 days. The IP Office issued Notice no. 4/2020 and Notice no. 6/2020.
Pursuant to Notice no. 4/2020, the deadlines for filing documents were suspended from March 24, for a period of 15 days, automatically extended for an equal period of time unless otherwise specified. This Notice relates more particularly to deadlines resulting from formal Office actions or notifications.
Notice no. 6/2020 suspended the deadlines resulting from the practice of acts contained in the bulletins of Industrial Property no. 12/2019, no. 1/2020 and no. 2/2020, from March 27, for a period of 15 days, automatically extended by an equal period of time unless otherwise specified.
Notice no. 6/2020 concerns acts such as oppositions, appeals of decisions, requests for deadline extension, responses to notifications, and correction of publications. All these acts would have to be done from January 28 2020 to May 25 2020.
The Office did not address acts with a deadline during the period of its suspension. However, even if the payment of official fees is possible, permitting the compliance of deadlines, Article 34 of Decree no. 82/20 states that all legal deadlines for forfeiture or lapse of rights are suspended during the state of emergency and provides the needed legal response.
Through Notice no. 7/2020, the IP Office announced the resumption of its activities from April 27. This follows the Presidential Decree No. 120/20 (April 24) which, despite extending the state of emergency, provides for the reopening of public services and some public health protection measures.
Article 33 of Decree no. 82/20 assures access to the courts of law whenever the safety of rights, liberties and guarantees are at stake. Therefore, holders of IP rights should be able to enforce their rights through court proceedings. Indeed, even though property rights have been limited, this limitation shall be permitted only when it is justified in order to tackle the pandemic.
Customs authorities are also maintaining minimum services and their intervention could be requested in order to confiscate counterfeit products. However, their action will depend on the hazard the counterfeit products may present to public health and safety.
It should be noted that Article 10 of the Law No. 3/92 (the Angolan Industrial Property Law) allows the Council of Ministers to decide to allow a state agency or third party designated by the respective supervising minister to exploit a patent without the agreement of the patent holder, but with fair compensation, if it is in the national interest. Additionally, Article 11 of the law provides for the possibility of the granting a compulsory licence to a third party for public interest reasons.
Despite the measures adopted by the government, IP protection and enforcement have not been hugely affected by the pandemic.
President Filipe Nyusi declared a state of emergency for a period of 30 days, starting from April 1. The state of emergency was implemented by Law No. 1/2020 (March 31), which set out a range of restrictions and measures in Mozambique.
The law did not affect public services, and therefore the Mozambican Industrial Property Institute continues to operate normally. However, a provision in the law (article 2.º) suspended procedural and administrative deadlines. The legislative framework did not create an exception for IP matters, which may lead to the assumption that IP-related deadlines regulated by the Intellectual Property Code have also been suspended.
The fact that the suspension applies to all deadlines, such as those relating to procedures under the Patent Cooperation Treaty, could be disputed on three grounds:
(i) The article 2.º in question is entitled “Access to Justice” which may be interpreted in a restrictive manner, limiting its scope to the deadlines before the courts.
(ii) The Mozambican Industrial Property Institute did not issue any formal announcements about the law.
(iii) The IP Office remains fully functioning.
Considering the above, compliance with the deadlines established under the Mozambican Intellectual Property Code appears to be the right path to follow in order to avoid any issues.
Article 92 of the Mozambican Intellectual Property Code provides for compulsory licensing. The use of the compulsory licensing provision is not, however, automatic; it is strictly limited and depends on the gravity of the situation.
In conclusion, the declaration of a state of emergency in Mozambique is not having a huge impact on IP rights, which are being protected as they were before the pandemic.
*This article was written and submitted in April 2020. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, any other of its practitioners, its clients, or any of its or their respective affiliates. This article is for general information purposes only and is not intended to be and should not be taken as legal advice. Please contact the author(s) if you have any questions about this article.
Vera Albino (Legal manager)
Diogo Antunes (Trade mark and patent attorney)
Inês Tavares (Trade mark and patent attorney)