A patent is a grant of protection for an invention. It is a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.
A patent is an exclusive right granted for an invention, a product, or process providing or offering a new practical solution to a problem or dilemma. Patent application in Nigeria is regulated by the Patents and Design Act Cap P2 LFN 2004. A patent gives the inventor the exclusive right to exclude others from producing, using, or selling the patented invention in Nigeria without the patent owner’s consent or being permitted by law, for the duration of 20 years subject to payment of annuities.
This article contains the criteria for patenting an invention, the process of registration, and the agency responsible for granting patent rights in Nigeria.
Eligibility of patent
For an invention to be patentable, the invention must satisfy the criteria set out in Section 1 of the Patent and Design Act Cap P2 LFN 2004. The Act provides that before an invention could be eligible for a patent, it:
- must be new;
- must have an inventive step that is not obvious to someone with knowledge and experience in the subject;
- 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;
- must not be against public policy or morality.
Procedure and Requirements
Sections 3, 4, and 5 of the Patents and Designs Act provide that patent application is to be made to the Registrar at the Trademarks, Patents and Designs Registry and shall contain certain information. The application to the Registrar must contain:
- a petition or request for a patent signed by the applicant or his agent and containing the applicant’s full name and address;
- a specification, including a claim or claims in duplicate; plans and drawings, if any, in duplicate;
- where appropriate, a declaration signed by the true inventor requesting that he be mentioned as such in the patent and giving his name and address;
- a signed power of attorney or authorization of agent if the application is made by an agent;
- an address for service in Nigeria if the applicant’s address is outside Nigeria; and payment of the prescribed fee.
Afterward, the patent application is examined by the Registrar. This is done to ascertain formal compliance with the requirement of the Act. Once the application satisfies the statutory requirements, the Registrar is likely to grant the patent without inquiries to its novelty, inventiveness and industrial applicability or whether the specification sufficiently discloses the invention. In Nigeria, patents are granted at the risk of the patentee and without guarantee as to their validity. Whether an invention is a product or process, the same registration procedure is adopted. There is no substantive examination of patents in Nigeria.
If an applicant has a convention application, that is an application claiming priority on the basis of an earlier application to register the patent made in a foreign country, such can also be registered in Nigeria by virtue of the Patent and Designs Convention Order 1971. The Convention provides that if the Nigerian application is made within 12 months of the making of the earlier application in the foreign convention country, such application will be treated as having been made on the same date on which the foreign application was made.
Procedure of claiming priority
An applicant seeking foreign priority to his application will complete (Form 1B), and a written declaration showing:
- The date and the number of the earlier application;
- The country in which such application was made; and
- The name of the person who made the application.
In not more than 3 months from the filing of the application, the applicant must furnish the Registrar with a copy of the earlier application, a certified copy by the appropriate industrial property office of the foreign convention country.
Franca Onukaire – PMS- PRESH & MAL SOLICITORS