Nigeria: The role of patents in promoting innovation

The greater heritage of a nation remains in the creativity of its citizens. Since the beginning of the 20th Century, the world has continued to experience astronomical advancement in scientific and technological innovations, which has changed the phase of modern society, leading many thinkers to term this present civilization “the jet age”.

This technological advancement has had an enormous impact on the world's legal systems. It has disrupted traditional modes of IP protection, which have been forced to change to keep abreast with the ever-changing forms of innovation.

To help promote creativity and innovations with the recent technological evolution that the world has experienced, as the life of every average citizen now revolves around one or more of these technologies, such as computers; including palmtops, hi-tech phones, cable receivers and the perpetually growing internet.

Several laws exist to protect and administer different kinds of IP. The three main statutes governing IP law in Nigeria are the Copyright Act, 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 a grant by a country to an inventor of a monopoly right, to preclude another person from exploiting his invention without his consent for a fixed period (usually 20 years). The monopoly is granted in return for the investor making his invention publicly known. Application for the grant of a patent in Nigeria is made to the Registrar of Patents and Designs; The Patent Registry.

F O Babafemi, in his book “Intellectual Property; The Law and practice of Copyrights, Trade Marks, Patents and Industrial Designs in Nigeria” (2006), explained that; a grant made by the relevant government authorities within a country to protect new inventions or improvements thereon are considered to have improved the way(s) the earlier inventions were made or used.

The Patent and Designs Act CAP P2, Laws of the Federation of Nigeria 2004, is the principal legislation that governs the registration and proprietorship of patents and designs in Nigeria and other matters ancillary thereto. The court that has jurisdiction to hear any patent-related matter is the Federal High Court.

Essentials of patentable inventions

The Patent and Designs Act makes a provision for the requirements of a patentable invention. Section 1(1) of the act provides.

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

It is important to mention that a patent cannot be validly obtained in respect of the following:

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

Role of patents in promoting innovation and creativity

Patents and other forms of IP 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 their invention to have the exclusive legal right to their invention, so as to have a monopoly right to exploit the invention for a limited period of time.

Registration of a patent gives the patent holder the right to exclude other persons from using the registered invention.

A patent confers upon the patentee the right to preclude any other person from doing the following acts; Section 6 (1) of the patent and Designs Act makes provision for the following;

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

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

A patent holder is also entitled to grant third parties contractual licenses to exploit such 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 revenue for a business owner.

Prior to the act, patents were rarely upheld in courts. Today, many creators have benefitted from their inventions and have received millions of Naira in infringement settlements.

Worthy of mention is the landmark Nigerian case of Bedding Holding Limited (BHL) v Independent National Electoral Commission, INEC & 5 (FHC/ABJ/CS/783/2010) others in the federal high court in Abuja. In this case, the court found INEC guilty of infringing the patent right to a process belonging to Bedding Holding Ltd (BHL).

The patents in question relate to the process and application of direct data capture machines for the compilation and collection of various biometric information and are covered by patents granted under the act.

The background facts are that BHL sued INEC and five others at the Federal High Court for  in respect of 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 violated the patents and consequently made a declaration inter alia that BHL is entitled to 50% of the total contract sum amounting to N 17.2 billion ($41.1 million), as the minimum reasonable royalty accruable for the infringement committed by INEC and the other defendants.

The enforcement mechanisms made available for a patent right holder as contained in the act have continued to be beneficial to inventors in curtailing infringements in Nigeria.

These mechanisms include: alternative dispute resolution, criminal complaint, and civil action in courts. The owner may be entitled to reliefs by way of damages, injunctions, rendering of accounts and such relevant reliefs (section 25, Patents and Designs Act, LFN [2004]).

Conclusion

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

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

The Patents and Designs Act has helped tremendously in promoting innovations and creativity in Nigeria. Inventors can now benefit from their creations, so long as their inventions falls within the scope of patentable inventions and are properly registered.

A patent confers upon the patentee the right to preclude any other person from doing the following acts.

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

Hence the right to a patent in respect of inventions is vested in 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 in respect of an invention, is the recognised owner of a patent right and enjoys all the rights of such creations.

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