2023-06-22 21:15:00
Eight years already, Morocco concluded with the European Patent Organization (EPO), an agreement for the validation of European patents in Morocco and yet several gray areas persist. Problems that are surmountable according to the experts, provided that the necessary measures are taken. Details.
It is with great fanfare that Morocco has validated a few years ago, an agreement to validate European patents in the Kingdom. Indeed, Morocco concluded, on March 1, 2015, with the European Patent Organization (EPO) an agreement for the validation of European patents on the territory. Concretely, European patent applications and European patents can therefore be validated in Morocco. Thanks to this validation procedure, European patents can enjoy equivalent protection in Morocco to that conferred by a Moroccan national patent. A great first at the time, since it was the first time that a non-European country allowed the validity of European patents on its territory.
Issam Benhssine, certified industrial property adviser and founder of the firm IB FOR IP explains to this effect, that “from a legal point of view, the agreement for the validation of European patents in Morocco is valid, insofar as it follows up the strategy initiative in terms of innovation led by the Moroccan government and that the draft amendment of the Moroccan law relating to industrial property in 2014 has been approved by the Moroccan Parliament. By virtue of the aforementioned provisions, a European patent validated in Morocco produces the same effects and is subject to the same conditions as a patent of invention filed with the OMPIC”.
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The Moroccan legislator has provided, at the level of the Moroccan law relating to industrial property, for legal actions in matters of invention patents to protect the general interest and/or private interests. A nullity action may be brought by any person having an interest if the invention does not meet the patentability criteria, if the invention is not sufficiently described, if the subject matter of the invention extends beyond the filed application or if the claims do not define the scope of protection (Article 85). This provision also applies to European patents validated in Morocco (article 88.1). However, eight years later, several gray areas continue to taint this great initiative and in particular the question of the validity of the patents thus “validated” in Morocco, and this for purely formal reasons which might be easily corrected according to the experts.
Daoud Salmouni-Zerhouni, Industrial Property Advisor and Lawyer at the Paris Bar, declares to this effect that “it is a vast subject. To put it simply, let’s say that the birth of this beautiful instrument did not take place in the best conditions. I think that caught up in the euphoria of signing this important international agreement for Morocco, the signing parties were reckless or negligent. Moreover, I believe they are embarrassed at the corners when, unlike the validation agreements signed with Tunisia or Moldova, the text of the agreement signed with Morocco is not available, both the EPO and the OMPIC refusing to publish or communicate it. There is already a lack of knowledge of the Constitution of the Kingdom which enshrines the right of citizens to access information”. For the Expert, “the main problem with this validation agreement seems to be that the party representing Morocco would have had neither the power nor the authority to sign such an international agreement. Moreover, its ratification also raises questions”.
Fragile foundation
“So we have a validation system, which in principle is obviously welcome, but whose foundation is extremely fragile,” he says. He draws attention to an extremely important aspect, namely that of legal certainty. Indeed, the Expert informs us that patent litigation is still quite limited in Morocco, however this situation will change in the future. Patent litigation will be brought to develop in the coming years, and will then inevitably arise “the question of the validity in Morocco of these European patents”, he underlines.
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More in detail, if a Moroccan court declares such patents invalid, the question of liability and compensation for the damage suffered by the holders of these canceled patents will then necessarily arise, which damage might amount to millions of dirhams.
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