HOW TO REGISTER A PATENT IN NIGERIA

INTRODUCTION

A patent is an exclusive legal right secured over an invention. It is a right that protects a product or a process which provides a new way of doing something, or offers a new technical solution to a problem such as discovery on a new process of producing a chemical compound, a new drug to treat cancer or corona virus or scientific/ medical equipment that never existed before, etc. This right is granted to an inventor by the federal government and such is to permit the inventor to exclude others from making, selling, or using the invention for a period of time.

What copyright is to literary and artistic works such as books, music and trademark to a trade name, is what patent is to an invention. These are all intellectual property rights. They have similar features and goals but in different subject matter and human endeavor.  The major reason for intellectual property protection is to deter/ discourage people from pirating or misappropriating ideas, concept, innovations and or inventions birthed by another and to allow the originators of these inventions enjoy the fruits of their labor at least for a good period of time.

WHAT LAW GOVERNS PATENT REGISTRATION IN NIGERIA?

The primary law that regulates/protect patent right in Nigeria is the Patent and Designs Act cap P2 LFN 2004.

The Government agency that manages the grant of patents is the Trademarks, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.

Applications for patent registration are made to the Registrar.

Under Nigerian law, only accredited individuals or companies can register patents on behalf of the inventors. Any person interested in registering a patent will therefore need to hire the services of accredited agents for this process.

WHAT IS THE CRITERIA FOR REGISTRATION OF A PATENT IN NIGERIA?

By section 1 of the Patent and Design Act (the “Act”) the criteria for registering a patent in Nigeria are provided as follows:

  1. Newness: The invention must be novel and have an inventive step that is not obvious to someone with knowledge and experience in the art (subject matter). The invention must also have never been known, used or made public. An invention is also patentable if it constitutes an improvement upon a patented invention.
  2. Capable of Industrial Application: The invention must be capable of being made or used in some kind of industry. This suggests that the invention goes beyond just an idea, a scientific theory, an aesthetic creation, a computer program but must take the practical form of an apparatus, product or a device.
  1. Public Policy and Morality: The invention must not be against public policy or morality as this constitutes a ground on which an application may be rejected by the Patents Registry.
  2. The application to be made to the Registry must relate to only one invention but may include or have in connection with that invention, claims for a number of products or for a number of manufacturing processes or applications of those products.
  3. Full Description:  In addition to the provisions of Section 1 of the Act, the Registry prescribes that the application must clearly and fully disclose the details of the invention, the processes involved and all that it entails.

REQUIREMENTS FOR THE REGISTRATION OF A PATENT IN NIGERIA

Upon fulfilling the conditions to qualify as a patentable invention, as identified above, an application shall be made to the Registrar of Patents and Designs (the “Registrar”) and shall contain the following:

  1. The applicant’s full name and address, and if the address is outside Nigeria, there should be an address for service within Nigeria;

2. A description of the relevant invention with any appropriate plans and drawings;

3. A claim or claims (for any number of products, processes or applications), however, an application shall relate to one invention only;

4. The application is to be accompanied by the prescribed fees as determined by the Registry from time to time;

5. Where appropriate, a declaration by the true inventor of the product supplying his name and address and requesting that he be mentioned as such in the Patent;

6. Where the application is submitted by an agent, a power of attorney authorizing the donee of the power of attorney to that effect.

After submitting the application with the accompanying documents, the patentee or an agent acting on his behalf will then wait for the application to be examined as to its conformity with the criteria and requirement for registration. If the application meets the requirements for registration, the patent shall be granted as applied for but where the application fall short of the requirement, it shall be rejected forthwith.

RIGHT CONFERED BY PATENT

 By section 6 of the Patent Act, Patent confers upon the patentee a right to preclude other person from doing any of the following act:

  1. Where the patent has been granted in respect of a product, the act of making, importing, selling or using the product, 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, any other act mentioned in (a) above

WHAT IS NOT PATENTABLE UNDER THE ACT

The law of intellectual property differs from one country to another, thus what can be protected under the law of a country might not enjoy the right of protection in another. Also, there have been instances where people come up with some ideas/concept pertaining to a process which they believe they have invented, and as such, would enjoy protection under the law but then to their utter amazement, such ideas/dreams lack the status of qualifying for a patent license.

The patent system is designed to encourage inventions that are unique and useful to the society. Under the Nigeria patent law, there are certain things that do not enjoy patent right protection. Section 1 (4) of the Act provides; patent cannot be validly obtained in respect of –

  1. Plant or animal varieties, or essentially biological processes for the production of plants or animals (other than microbiological processes and their products); or
  2. Inventions the publication or exploitation of which would be contrary to public order or morality.
  3. Principles and discoveries of a scientific nature.

BENEFITS OF REGISTERING A PATENT

  1. A patent gives the patent holder the right to stop others from using the registered invention or to choose to permit the use by other persons of such invention under agreed terms.
  2. A patent also gives the patent holder the right to bring a legal action against anyone who infringes on the registered invention and to make a claim for damages.
  3. The Court may also in appropriate circumstances grant injunctive orders restraining the offending party from further infringement on the rights of the patent holder.
  4. It encourages innovations and inventions.
  5. A patent gives the patent holder the right to grant others a license to use such invention, or sell it, as with any asset. This can provide an important source of revenue for your business.
  6. In general term, patent is good because it helps safeguard your invention against unauthorized use or application.

HOW LONG DOES A PATENT LAST IN NIGERIA?

A Patent expires after 20 years from the date of the filing of the relevant patent application.

The Act also provides for the expiration of a patent where the patent holder fails to pay the prescribed annual fees after a grace of 6 (six) months following the year from which such fees are due.

CONCLUSION

As stated above, one of the goals of patents registration and protection is to encourage innovation and invention. Not all inventions are patentable. Patentable inventions therefore are the creation of a new thing or improvement on the old process which satisfy the requirements of novelty and industrial application. That is to say they must meet the criteria for registration under the Patents and Designs Act.

For further enquiries, please reach out to us HERE. We look forward to hearing from you.

Cynthia Tishion
Cynthia is a lawyer and currently serves as Head of Corporate / Commercial Services at LEX – PRAXIS. With her passion for business and entrepreneurship, she is actively engaged in creating awareness on the legal aspect of businesses through various platforms such as writing, public speaking engagements.

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