A nation’s greatest heritage lies in the creativity of its citizens. Since the beginning of the 20th century, the world has continued to experience astronomical advances in scientific and technological innovations, which have changed the phase of modern society, leading many thinkers to call this current civilization “the jet age”.

This technological advancement has had a huge impact on the legal systems of the world. It has disrupted traditional modes of intellectual property protection, which have been forced to change to keep up with ever-changing forms of innovation.

Help promote creativity and innovations with the recent technological evolution the world has experienced, as the life of every average citizen now revolves around one or more of these technologies, such as computers; including handheld computers, high-tech phones, cable boxes, and the ever-growing Internet.

Several laws exist to protect and administer different types of intellectual property. The three main laws governing intellectual property law in Nigeria are the Copyright Act, the Patents and Designs Act, and the Trademarks Act.

This article examines the role of patents in promoting innovation and creativity in Nigeria.

Patents

A patent is the grant by a country to an inventor of a monopoly right, to prevent another person from exploiting his invention without his consent for a fixed period (usually 20 years). The monopoly is granted in exchange for the public dissemination of his invention by the investor. Application for grant of a patent in Nigeria is made to the Registrar of Patents and Designs; The patent register.

FO Babafemi, in his book “Intellectual Property; The Law and Practice of Copyrights, Trademarks, Patents and Industrial Designs in Nigeria” (2006), explained that; a grant made by the competent government authorities of a country to protect new inventions or improvements thereto is considered to have improved the way or ways in which earlier inventions were made or used.

The Patents and Designs Act CAP P2, Laws of the Federation of Nigeria 2004, is the primary legislation that governs the registration and ownership of patents and designs in Nigeria and other related matters. The competent court to hear all matters relating to patents is the Federal High Court.

The essence of patentable inventions

The Patents and Designs Act provides the conditions for a patentable invention. Section 1(1) of the Act provides for this.

  1. If it is new, results from an inventive activity and is susceptible of industrial application or;
  2. If it constitutes an improvement of a patented invention and is new, results from an inventive step and is susceptible of industrial application.

It is important to mention that a patent cannot be validly obtained for the following:

  • Plant or animal varieties, or essentially biological processes for obtaining plants or animals (other than microbiological processes and their products); Where
  • Inventions whose publication or exploitation would be contrary to public order or morality

Role of patents in promoting innovation and creativity

Patents and other forms of intellectual property protection play an important role in encouraging innovation and creativity. The purpose of patenting is essentially economic. To encourage innovation and creativity, it is important for a creator to register his invention in order to have the exclusive legal right to his invention, so as to have a monopoly right to exploit the invention for a limited period.

Registering a patent gives its owner the right to prevent others from using the registered invention.

A patent grants the patentee the right to prevent any other person from performing the following acts; Section 6(1) of the Patents and Designs Act provides the following;

  1. Where the patent has been granted for a product, the act of manufacturing, importing, selling or using the product, or storing it for the purpose of sale or use; and
  2. Where the patent has been granted for a process, the act of applying the process or making, in respect of a product obtained directly by means of the process.

Section 6(2) of the Patents and Designs Act 2004 further provides that the scope of protection conferred by a patent is determined by the terms of the claims; and the description (plans and drawings if any) included in the patent must be used to interpret the claims.

The patent holder also has the right to grant contractual licenses to third parties to exploit these inventions. On an exclusive, sole or non-exclusive basis or may assign the patent right to a third party. This can be a lucrative source of income for a business owner.

Prior to the law, patents were rarely upheld in court. Today, many creators have benefited from their inventions and received millions of naira in settlement for counterfeits.

Mention should be made of the historic Nigerian case of Bedding Holding Limited (BHL) v Independent National Electoral Commission, INEC & 5 (FHC/ABJ/CS/783/2010) others at the Federal High Court in Abuja. In this case, the court found INEC guilty of infringing the patent right of a process owned by Bedding Holding Ltd (BHL).

The patents in question relate to the method and application of direct data entry machines for compiling and collecting various biometric information and are covered by patents issued under the statute.

The substantive facts are that BHL sued INEC and five others in the Federal High Court over a proof of address system/scheme (I refer to patent RP16642 and RP NG/P/2010/202 collectively as “the patents”).

The court held that the defendants had infringed the patents and therefore made a declaration among others that BHL is entitled to 50% of the total sum of the contract amounting to 17.2 billion naira (41.1 million dollars), as the minimum reasonable royalty that can be accrued for the breach committed by INEC and the other defendants.

The enforcement mechanisms available to a patent rights holder, as contained in the Act, have continued to benefit inventors by reducing infringements in Nigeria.

These mechanisms include: alternative dispute resolution, criminal complaint and civil action before the courts. The owner may be entitled to remedies in the form of damages, injunctions, rendering of accounts and other relevant remedies (Article 25, Patents and Designs Act, LFN [2004]).

Conclusion

One of the main benefits of innovation is its contribution to economic growth. Thus, an innovative economy can lead to new products and services, which in turn generate greater output for the economy.

Innovation has a positive effect on the economy, however, if it is not properly protected, inventions will be exploited and creators will not benefit from their inventions.

The Patents and Designs Act has helped enormously in promoting innovation and creativity in Nigeria. Inventors can now benefit from their creations, provided that their inventions fall within the scope of patentable inventions and are duly registered.

A patent gives its holder the right to prevent any other person from doing the following acts.

  1. Where patents have been granted for products, the fact of manufacturing, importing, selling or using the products or stocking them for the purpose of sale or;
  2. Where the patent has been granted for a process, the act of applying the process or making, in respect of a product obtained directly by means of the process.

Thus, the right to the invention patent belongs to the statutory inventor. The person who is the true inventor, the first to file, or who can validly claim a foreign priority for a patent application relating to an invention, is the recognized holder of a patent right and enjoys all rights to these creations.

This is a co-published article, originally published in the World Intellectual Property Review (WIPR).