Today's fast rate of technological innovation makes software patenting an essential tool for intellectual Property (IP) protection. It enables Inventors to gain a competitive edge, establish themselves as market leaders, and reap the economic fruits of their invention.
These benefits extend beyond individual inventors. By encouraging and protecting software innovations through patent law, society as a whole becomes a direct beneficiary of increased technological advancement, improved products and services, and economic growth.
In this article, we explore software patenting in Nigeria with a focus on the requirements, the registration process, and associated costs.
Is Software patentable in Nigeria?
Yes. In Nigeria, Software is both patentable and copyrightable.
As a form of computer language comprising source codes and object codes, software is treated as a literary work that is copyrightable under the Nigerian Copyright Act 20231. In the same vein, under the Patent and Designs Act 20042 ("the Act"), software is considered to be a process, method, or system used to achieve a particular result and is therefore patentable.
REQUIREMENTS FOR SOFTWARE PATENTABILITY IN NIGERIA3
Section 1 of the Act provides the requirements for software patentability. These requirements include:
- Novelty: This means the software must not have existed anywhere else in the world and must not have been disclosed to the public before filing the patent application. This applies whether the software is new in totality or is an improvement on an existing invention.
- Inventive: a mere development or obvious improvement on an existing invention would not qualify a software for registration. Thus, creating the software must have involved an inventive step. In determining what is "obvious", the standard applied is whether a person skilled in the relevant field at the time of invention would consider the development self-evident or obvious.4
- Industrial Application: The software in question must be capable of being manufactured and applied to good use in the relevant industry.
Where a software meets the above requirements, it is deemed patentable under the Act.
PROCEDURE FOR THE REGISTRATION OF SOFTWARE PATENT IN NIGERIA5
In Nigeria, the Trademarks, Patents and Designs Registry ("the Registry") under the Federal Ministry of Industry, Trade and Investments grants patents to eligible applicants. Below are the steps for filing an application for a software patent in Nigeria.
- Determine the patentability of the invention. The software should meet the requirements for patentability as listed above (i.e., novelty, inventiveness, and industrial applicability). To ascertain whether the software meets these requirements, a search may be conducted on the patent database by a registered agent before formal application.
- Meticulously prepare and submit the application: Upon determining the patentability of the software, the next step is to prepare the patent application. The Application is submitted to the Registry, and must contain key information and accompanying documents such as:
- details of the applicant, e.g., name and address;
- clear description of the invention;
- appropriate drawings and plans;
- defined claims or an outline of the aspects of the invention the applicant intends to protect from others;
- a duly executed power of Attorney, where the application is made by an agent on behalf of the inventor and;
- receipt of payment of the prescribed fees6
- Examination of the application: Upon submission of the application, the Registrar conducts a meticulous assessment of the submitted application. This step may take a few months, during which the applicant may be called upon to provide additional information or respond to inquiries.
- Grant of the Patent: In the absence of any opposition to the patent application within the stipulated period, the application is approved, and a certificate is issued to the applicant.
The Act provides that once a patent is granted, it remains valid for a period of twenty years from the date of filing the relevant patent application.7 However, this validity is subject to prompt payment of the prescribed annual fees.8
WHAT DOES OBTAINING A SOFTWARE PATENT COST, AND HOW LONG DOES IT TAKE?9
The registration generally takes about 6 to 12 months. This period may be affected by certain factors, including:
- completeness of the application;
- administrative delays and;
- possible objections or oppositions.
CONCLUSION
Obtaining a patent is essential for any inventor seeking to protect their technological invention. Qualified experts are trained on the legal formalities, procedural requirements, and ways of maintaining consistent communication with the patent office during the registration process. Therefore, it is crucial to engage the services of a qualified patent lawyer or agent to offer the necessary support and guidance.
Footnotes
1 See the Nigerian Copyright Act, ACT No 8, section 2
2 Patent and Designs Act CAP P2, LFN 2004
3 Section 1 Patents and Designs Act
4 Section
5 https://trustedadvisorslaw.com/how-to-register-a-patent-in-nigeria/
6 See section 3 of the Act
7 See section 7 of the Act
8 See section 7 of the Act
9 https://trustedadvisorslaw.com/how-to-register-a-patent-in-nigeria/
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
