PATENT REGISTRATION IN NIGERIA

WHAT IS A PATENT

A patent is a government license that confers an exclusive legal right or title for a specified period. It gives the sole right to exclude others from using, making or selling an invention in the country it is obtained without permission or consent during the lifespan of the patent. A patent protects an invention that provides a new and inventive technical solution to a problem.

LEGAL FRAMEWORK OF PATENT IN NIGERIA

1. The Patents and Designs Act (The Act): This is the substantive legislation on patents and designs IN Nigeria, it regulates the registration of patents in Nigeria.
2. 1971 Patents Rules: This is the principal procedural guideline for the Patents Registry on the registration of patents.

RIGHT TO A PATENT

The right to patent an invention is vested in the “statutory inventor”. Section 2 of the Patent and Designs Act defines a statutory inventor as a person who whether he is the true inventor is the first to file a patent application or validly claim a foreign priority for a work. Also, where multiple persons are involved in the composition of an invention, they may apply jointly for a patent right of that invention.

RESTRCITIONS TO RIGHT TO A PATENT

A person who merely aided in doing work linked with the development of an invention without contributing any inventive activity is not an inventor and therefore without right to patent. Also, an invention made in the course of employment or in course of the execution of a contract for the performance of designated work is not a statutory inventor, the right to a patent here is vested in the employer or the person who commissioned the work, the employee inventor will only be entitled to wages as compensation.

INVENTIONS THAT CAN BE PATENTED [1]

Patentable inventions are inventions that are new, or inventions that constitute an improvement upon a patented invention that is new or inventions that result from an inventive activity that is capable of industrial application. An invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture. 

INVENTIONS THAT CANNOT BE PATENTED [2]

1. Plant varieties, animal species and essentially biological processes for the breeding plants or animals, other than microbiological processes and products.
2. Inventions to public order or morality.

In addition, although, Nigeria is not a member of the African Intellectual property organization, it shares similar unpatentable inventions with AIPO as follows:

• Computer programs
• Schemes, rules, and methods for doing business etc.
• Literary, architectural, and artistic works, aesthetic creations,
• Discoveries, scientific theories, and mathematical methods,

Therefore, an invention is patentable if it is novel, capable of industrial application, and is not against public policy and morality.

PROCEDURE OF PATENT REGISTATION IN NIGERIA

PRE-REQUISITES

A patent application in must have the following attributes:

1. It must be new.
2. It must have an inventive step that is not obvious to someone with knowledge and experience in the subject.
3. It must be capable of being made or used in some kind of industry and not be, a scientific or mathematical discovery, theory or method, a literary, dramatic, musical or artistic work, a way of performing a mental act, playing a game or doing business, the presentation of information, or some computer programs, an animal or plant variety, a method of medical treatment or diagnosis.
4. It must not be against public policy or morality.

The registrar of Patent and Design is charged with the duty of examining patent applications  to determine suitability or otherwise of individual application.

PROCEDURE

Timeline for registration of an invention ranges between 6 weeks to 7 weeks. The procedure for patent registration at the Design & Patent registry is as follows:

1. Availability search: To ensure the invention is not already patented. If the result of the search is positive, then the application is made.
2. An application to register a patent is made to the Registrar of Patents and Designs and shall contain the following:[3]

1. The applicant’s full name and address, and address for service within Nigeria
2. A description of the relevant invention with any appropriate plans and drawings
3. A claim or claims (for any number of products, processes, or applications),
4. A declaration by the true inventor of the product supplying his name and address and a requesting that he be mentioned named as such in the Patent
5. Evidence of payment of prescribed fees as determined by the Registry.
6. Where the application is submitted by an agent, a power of attorney authorizing the agent is to accompany the application.

By section 7 of the Act every patent shall expire at the end of the twentieth year from the date of the filling of the relevant application. A patent shall also lapse if the prescribed annual fees are not paid provided a grace period of 6 months is given for the fees to be paid. Also, only accredited persons or companies can register patents on behalf of inventors in Nigeria. The grant of patents is vested in the  Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade, and Investment, where all applications are made to the Registrar of Designs & Patents.

BENEFITS OF A PATENT

1. A patent holder holds the right to stop others from using her/his registered invention.
2. A patent holder holds the right to permit, grant a license to use or sell such invention. This provides a source of revenue for business i.e., commercialization of the invention.
3. A patent holder holds the right to bring a legal action against person(s) who infringe on the registered invention, also make claim for damages, injunctive relief etc. this gives room for the creation of value.

FOREGIN PRIORITY

Foreign priority comes into play when an application for the registration of a patented invention in another country is now made in Nigeria.

The application is treated as having been made on the same date on which the foreign application was made, provided the Nigerian application is made within 12 months of the making of the earlier application in the foreign convention country. Foreign priority in Nigeria is only accorded to convention countries.

SETBACKS

The Act does not also grant patents in respect of certain area of inventions, including inventions in relation to plants, animal varieties, biological processes to produce plants or animals, except microbiological processes and their product. These exempted areas have more or less caused setbacks in the medical and agricultural advancement of the economy. These exemptions are registrable in Kenya, United States, South Africa etc.

IN CONCLUSION

A patent license cannot be obtained for ideas and dreams. A patent holder that desires to protect his invention in countries which are not signatories to the conventions or treaties Nigeria is a part of need to make such application in the country. A patent holder may opt to register his patent with the World International Property Organization (WIPO) which currently has over 189 member states including Nigeria.

[1] Sections 1 & 2 of Patent & Designs Act

[2] Section 1 (4) of Patent & Designs Act

[3] Sections 3, 4, and 5 of Patent and Designs Act