Patents Act

This Act may be cited as the Patents Act.

This section defines key terms used in the Act and explains how to read references to the date of a patent.

A Patent Office is to be established under the Minister’s direction.

The Minister must appoint a Registrar of Patents, one or more Deputy Registrars of Patents, and any other officers needed to carry out the Act.

The Patent Office must have a seal, and courts must treat impressions of that seal as judicially noticed.

The Patent Office must keep a register of patents, the public may inspect it, and certified copies can be obtained on payment of the prescribed fee.

If Malawi accedes to the Convention and any revision, the Minister must publish a Gazette notice declaring Malawi has become such a country.

Certain convention applicants can get a Malawi patent with priority if they apply within 12 months; the application must include a complete specification.

Patent rights are not treated as infringed when certain registered vessels, aircraft, or land vehicles come into Malawi only temporarily or accidentally and the invention is used in the specified way.

The Minister may make regulations about patent applications for inventions shared under certain international agreements, including protecting valid applications and allowing refusal or revocation in some cases.

A patent granted under the Protocol has effect in Malawi as if it were granted under this Act, subject to the Protocol.

Certain persons may apply for a patent for an invention.

Patent applications must use the prescribed form, be signed, filed at the Patent Office, and include required addresses and ownership/inventor details.

Patent applications must usually include a complete or provisional specification; convention applications must include a complete specification.

This section sets out what a patent specification must contain and how claims must be drafted.

This section sets when a patent claim takes effect, with different rules depending on how the complete specification was lodged.

The Registrar must examine patent applications and related specifications, and an examiner may do the examination on the Registrar’s direction.

The Registrar may post-date or antedate certain patent applications or specifications in defined situations, subject to request, payment, and date limits.

The Registrar may refuse a patent application if the invention is frivolous, unlawful, immoral, or falls within certain listed cases.

The Registrar may refuse, amend, cancel, or let an application proceed when a patent specification or convention application is defective, in some cases only with the applicant’s consent.

An application lapses if a complete specification is not accepted within 18 months of lodging, unless listed exceptions apply. The Registrar must grant a time extension on payment of the prescribed fee, up to 3 months, and the Patents Tribunal may set the date if an appeal is pending.

The Registrar may accept a complete specification, and the applicant must publish notice of acceptance within the prescribed or allowed time or the application lapses.

Interested persons, including the Government, may oppose a patent grant by written notice to the Registrar within the stated time limits and only on the listed grounds.

The Registrar may substitute a claimant or a deceased joint applicant in a patent application if the section’s conditions are met.

The Registrar may restrict publication of certain patent inventions for defence reasons, and secrecy can trigger notices, reviews, compensation, and an offence for non-compliance.

A patent must be granted when the statutory conditions are met and any opposition is resolved in favour of grant; the Registrar must then seal it.

The Registrar may amend a patent if the patent had been sealed after an application and the applicant had died, or a body corporate had ceased to exist, before sealing.

The patent date is the effective date of the application, subject to this Act.

A patent must be in the prescribed form, and the patentee gets power to make, use, exercise, and sell the invention in Malawi subject to the Act and the patent’s conditions.

Every patent lasts 16 years from the date the complete specification is lodged in the Patent Office, subject to this Act.

A patentee or exclusive licensee may apply to extend a patent term after prescribed advertising, and the Patents Tribunal decides the application subject to notice, hearing, time limits, and maximum extension periods.

This section lets the Registrar grant a patent of addition for an improvement or modification of a main invention, if the applicant or patentee requests it and the stated conditions are met.

A patent lapses if renewal fees are not paid on time. The Registrar may extend the payment time by up to six months on the patentee’s application and if any prescribed extra fee is paid.

A patentee may apply to restore a lapsed patent, and the Registrar may restore it if the failure to pay was unintentional and there was no undue delay.

When a lapsed patent is restored, the patentee is barred from suing for certain earlier infringements and from claiming damages in those protected situations.

A patentee may ask the Registrar to endorse a patent with “licences of right”; if endorsed, anyone can seek a licence on terms set by the Registrar if needed.

This section lets a patentee, and in some cases an interested claimant, ask the Registrar to cancel a patent endorsement, with notice and hearing if opposition is filed.

This section lets an interested person apply to the Registrar for a compulsory patent licence after the stated waiting period, if a licence cannot be obtained on reasonable terms.

The Patents Tribunal can grant a licence under certain patents on application, unless there are good reasons to refuse.

Orders granting licences must be treated as if they were licence agreements signed by the patentee and any other necessary parties, and orders inconsistent with the Convention cannot be made on a section 37 application.

Government departments, and people the Minister authorizes in writing, may use patented inventions for Government service under this section.

During a period of emergency, certain government actors may make, use, exercise, and sell an invention for purposes the Minister considers necessary or expedient.

Disputes about Government use of an invention may be referred to the Patents Tribunal, and the Minister has limited powers in those proceedings.

Applicants or patentees may ask the Registrar to amend a patent specification, but they must state the proposed changes and reasons, follow notice and opposition steps, and some amendments are barred.

The Court or Patents Tribunal may let a patentee amend a patent specification in certain infringement or revocation proceedings, subject to section 43(3).

Damages generally cannot be awarded for use of the invention before the amendment decision date if a specification amendment was allowed after publication, unless the Court or Patents Tribunal is satisfied the original specification was prepared in good faith and with reasonable skill and knowledge.

A patent cannot be refused or invalidated just because the invention was already published, used, or known before the application date, if the applicant or patentee proves the knowledge or use happened without their knowledge or consent and was derived from them.

Joint patentees get equal shares and may use the patent for their own benefit, subject to any contrary agreement and the section’s consent/direction rules.

If an employer and employee dispute rights in an invention made by the employee, the Registrar may decide the dispute, make orders, and the Patents Tribunal or Registrar may apportion benefits in some cases.

Certain patent-related contract conditions are not lawful, but the section sets out exceptions and lets either party end some contracts on three months' written notice after patent protection ends.

A person interested may apply to the Patents Tribunal to revoke a patent, but only on the grounds allowed by this section.

If a patent was revoked for fraud or refused, the Patents Tribunal may direct that a patent be granted on application, and some earlier infringement actions are barred.

A patentee may offer to surrender a patent to the Registrar, must advertise the offer if made, and interested persons may oppose it within the prescribed period.

Only the patentee or exclusive licensee may start a patent infringement action, and the High Court hears it.

If a patent infringement case involves one valid claim and one invalid claim, the court must still give relief for the valid claim unless the invalid claim was not made in good faith and with reasonable skill and knowledge.

In patent infringement cases, damages generally cannot be awarded against a defendant who did not know about the patent and had no reasonable way to find out; the Court may also refuse damages in some late-fee-payment cases, and its power to grant injunctions is preserved.

A person who is threatened with patent infringement proceedings may sue in the High Court for relief, and the plaintiff can get declarations, an injunction, and damages unless the defendant proves infringement.

The High Court may declare that a person’s use, making, sale, or use of a process or article would not infringe a patent claim if the required written request and refusal/neglect steps are shown.

Patent rights may be assigned, mortgaged, pledged, or pass by law, and a person who acquires an interest may ask the Registrar to register title or notice of the interest.

The Registrar may authorize certain corrections to patent-related documents and procedure, and must give notice and a hearing before making a correction without a written request.

The Patents Tribunal may order the register to be corrected, and the Registrar must update the register when served with the order.

Certified documents and extracts can be used as evidence without extra proof.

On request and payment of the prescribed fee, the Registrar must provide copies, register particulars, or a certificate for the relevant patent documents.

If the Registrar is satisfied a patent has been lost, destroyed, or cannot be produced, the Registrar may have a duplicate sealed, after payment of prescribed fees.

The Registrar must let a patent applicant, or an applicant to amend a specification, be heard before using a discretion against them, and may extend a time limit if the stated conditions are met.

In proceedings before the Registrar, evidence is generally given by affidavit, but the Registrar may allow oral evidence and cross-examination.

Advertisements and notices under the Act need to be in prescribed form and approved by the Registrar before publication, unless the notice is issued under the Minister’s authority.

Patent agents may represent people before the Registrar and Patent Office, and they are exempt from a certain offence for preparing patent documents in those settings.

This section sets who may apply to be registered as a patent agent, requires the Registrar to keep and update the register, and bars recent patent-office public officers from registering or practising for 12 months.

The Registrar or Patents Tribunal may remove a patent agent’s name from the register, and the Tribunal may also suspend practice, subject to listed conditions and hearing rights.

Legal practitioners may act as patent agents and do section 67 functions without registering as patent agents.

A person may practise as a patent agent only if registered or otherwise entitled under section 70, and unregistered people may not hold themselves out as patent agents.

Patent agents must not hold interests in more than one patent agent firm in Malawi, use restricted names or titles, or practise while tied to certain partnerships or fee-sharing arrangements.

Where this Act allows an appeal from the Registrar, the appeal must be made to the Patents Tribunal.

This section establishes a Patents Tribunal, sets who appoints its chairman and officers, and lets the Tribunal choose when and where it sits.

The Patents Tribunal has broad powers in proceedings before it, including powers similar to the High Court, powers on appeal, and power to issue binding instructions where the rules do not cover a matter.

In Patents Tribunal proceedings, the parties may appear in person or through a legal practitioner, and the Tribunal may let the Registrar intervene.

The Patents Tribunal may require security for costs from a party resident outside Malawi and can stop the proceedings until that security is given. Costs awarded under section 75(3) are to be taxed by the registrar unless the parties agree otherwise.

A party to Patents Tribunal proceedings may appeal to the High Court under the applicable rules.

The Patents Tribunal may appoint a specially knowledgeable person as an assessor to advise in a case when that expertise is needed.

Appeals under this Part must be filed within three months of the decision or order, unless the Patents Tribunal or High Court allows more time on application.

The Minister may make rules for Patents Tribunal practice, procedure, appeal timing, costs, fees, assessors’ fees, and summary dismissal of frivolous, vexatious, or delaying appeals.

The Registrar may refer a difficult or important matter to the Patents Tribunal after notifying the parties, and must then follow the Tribunal’s decision.

It is an offence for any person to knowingly make, cause, produce, or tender false register entries or false copies of register entries in evidence.

A person commits an offence if they knowingly make or submit a false statement or representation to deceive or influence the Registrar, a Patent Office officer, or an act-related decision.

A person commits an offence if, after being sworn or affirming/declararing instead, they wilfully give false evidence before the Registrar or the Patents Tribunal about the matter in question.

Patent Office officers must not buy, sell, acquire, or traffic in inventions, patents, or rights under patents.

A person must not falsely say an article sold is patented; doing so is an offence.

People who are not appointed under section 4 must not use “Patent Office” or similar wording for their business or documents.

A person guilty of an offence under the Act can be fined £500 and imprisoned for three years.

Documents or notices that must be lodged, made, or given under the Act may be delivered by hand or sent by registered post; documents lodged in the Patent Office for use before the Registrar or Patents Tribunal do not require authentication.

A person who must take an oath or swear to an affidavit may instead make an affirmation or declaration.

Money needed for the Act must be paid from funds provided by Parliament.

Fees must be paid before the Registrar acts, before another person’s act is treated as done, and before a document is treated as lodged.

This section saves the Government’s and related persons’ right to sell or use forfeited articles.

The Minister may direct the Registrar to publish a Patent Journal, and the Registrar must arrange for copies of it to be sold.

The Minister may make regulations under the Act.

Certain earlier patents are treated as if registered and protected under this Act, with limits on revocation and specific rules for pending applications and fees.