Patent registration in Nigeria is administered by a government agency, the Trademarks, Patents and Designs Registry, Commercial Law Department, Ministry of Trade & Investment, Abuja.
A correctly operating patenting structure offers a favorable legal setting for an inventor of a useful and new invention to gain from the intellectual efforts exerted with full protection of law.
PATENTIBILITY OF AN INVENTION
Although almost all patents are actually made up of inventions comprising of processes or products, nonetheless, not all inventions could be a subject matter of legitimate patents. To be patentable, a creation should meet the key elements set out under the Design and Patent Act Cap P2 LFN 2004 (the Act).
A proposed patent should not have ordinarily disclosed to the public before the particular date of application for patent, it must be entirely new. This test of newness under Nigeria law is actually universal.
The disclosure, which defeats newness, is not restricted to the geographical boundaries of the nation. Accordingly, Section 1(3) of the Act provides that where an invention has been put to use or perhaps published (orally or perhaps in writing), the invention has been anticipated and is therefore no longer new and a patent issued in respect of such anticipated subject matter could be invalidated on this ground.
While newness deals with the big difference between a claimed invention and prior art, the necessity of inventive activity deal with the scope of the difference between what was previously known and what the inventor claimed to have devised. Put simply, there should have been a substantial contribution to the state of art, in the sense that what's claimed, as invention must not be obvious.
Section 1(2)(b) of the Act states that an invention results from inventive activity in case it doesn't naturally follow from the state of art. Hence, to qualify for the grant of a patent, the inventive step taken by the inventor mustn't be the one that's apparent, or perhaps which follows logically from details that is available about the product or perhaps process. The inventor is needed to have duly exercised his or her inventiveness in a manner considered sufficiently ingenious to justify the grant of the patent; otherwise, the patent may be invalidated on the ground of lack of inventive activity.
An inventor or applicant will satisfy the requirement of inventive activity where the invention is not obvious or perhaps ordinary but as a result from the inventor's ingenuity.
WHO CAN APPLY FOR A PATENT PROTECTION?
The Act lays down the process to be complied with in order to secure patent protection in respect of an invention. It's so instructive to state that the right to a patent in respect of an invention is actually vested in the "statutory inventor" i.e. the first person to file, or perhaps validly to claim foreign priority for a patent application in respect of the invention, perhaps not he is the real inventor. Where two or perhaps more persons are actually involved in the making of an invention, they may apply jointly for a patent right in respect of that invention. Meanwhile, the individual that has only assisted in doing work connected with the development of an invention without contributing any inventive activity cannot be regarded as an inventor.
The Act also attempts to balance the interest of parties. Under the provision of its, where an invention is actually made in the course of employment or perhaps in the execution of a contract for the performance of specified work, the right to a patent is actually vested in the employer, or perhaps as the case might be the one who commissioned the work. The question as to who's the right to a patent under the law is therefore hinged on the question of whether or perhaps not the invention was made "in the course of employment, or perhaps in the execution of a contract for the performance of a specified work".
The law simply provides that in circumstance that is such, the employee inventor will only just be entitled to remunerations.
Applications to register patent is actually dealt with under Section 3 5 of the Patents and Designs Act, which provides that patent applications are actually to be made to the Registrar and shall contain the following details:
- The applicant's full name and address and if that address is actually outside Nigeria, an address for service in Nigeria.
- A description of the relevant invention with any appropriate plans and drawings.
- A claim or perhaps claims.
- The application shall also contain
such other matters as may be prescribed, and be accompanied by
- Evidence of payment of the prescribed fee;
- Where appropriate, a declaration signed by the real inventor requesting he be mentioned as such in the patent and giving his address and name
- A duly signed power of attorney in case an agent makes the application.
- Foreign Priority documents in the case of PCT application.
PATENT CONVENTION TREAT (PCT) APPLICATION
The PCT rule provides that in cases where an application for a patent grant has been made in another country; and subsequently a corresponding application is actually made in Nigeria (for the same invention) the latter application (in Nigeria) shall be treated as having been made on the day when an earlier application (in that other country) was made.
Consequently, for the purpose of determining whose application is earlier in time, such foreign application will be deemed to be senior or earlier to the subsequent application by another person in Nigeria, provided the foreign applicant also filed for registration in Nigeria, though at a later date as opposed to the local person's application.
Where an applicant for a patent seeks to avail himself of a foreign priority in respect of an earlier application made in a country outside Nigeria. Here, the Nigerian application is usually to be accompanied by specific details related to the earlier foreign application like date, number, country of name and application of the earlier applicant. The Registrar shall also be furnished with a certified copy of the earlier application within 3 weeks from the particular date of the application in Nigeria. It must also be noted that foreign priority is only accorded to the applications made in countries who are parties to the convention.
GRANT AND EXAMINATION OF PATENTS
The Registrar is actually charged with the duty of examining patent applications, in order to determine suitability or perhaps otherwise for a grant. It must be noted however that the authority of a Registrar in this regard is actually limited to a formal examination of the application to ensure conformity with the procedural requirement of the law. When these have been complied with, the patent shall be granted as applied for with no further examination of the substance of the application.
Where the formal requirement for registration have been met, the Registrar grant the patent by the virtue of a certificate containing the details of the patent, the name and address of the patentee, the particular date of application and additional information's as may be needed on behalf of the President. Soon after the grant, the Registrar shall cause to be published the notification of the grant.
The process of patent registration in Nigeria is actually administered by the government agency that's very thorough and knowledgeable on what's supposed to be a patent or perhaps not, therefore, the Registry may reject some idea or perhaps invention that lack the requisite requirements for patenting.
Nevertheless, a duly registered patent with a grant is going to confer certain legal rights on the patentee in respect of the invention and this will include that the patent will confer upon the patentee the right to preclude any other individual from making, importing, using or selling it.
A patent shall expire after twenty years from the particular date of granting the patent application. Once expired, the invention (the subject matter of the patent) falls into the public domain and becomes available to be used freely by members of the public.
Originally published 03 August, 2020
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.