WHAT IS THE CONCEPT OF PATENT?
Patent is a well know word, however what does it entail? And what are the requirements for Patentability? And what are its exceptions?
Patent is an exclusive right granted for an invention which is a product or process. A patent is a monopoly right in an invention. Patent law in Nigeria is regulated by the Patent and Design Act Cap P2 LFN 2004.
The lifespan of the patent lasts for 20 years provided the annual renewal fees are paid for the duration of its potential life. Where the patentee defaults in the payment of the annual renewal fee, the patent lapses, after a 6 months period of grace, if still not be renewed and cannot be revived again.
The primary legislation that governs the registration of patent in Nigeria is the Patents and Designs Act. 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.
Section 1 of the Patent and Design Act sets out the requirement of a patentable invention (a) If it is new, results from inventive activity and is capable of industrial application; or (b) If it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.
The Act lays down the procedure to be complied with in order to secure patent protection in respect of an invention. It is very instructive to state that the right to a patent in respect of an invention is vested in the “statutory inventor” i.e. the first person to file, or validly to claim foreign priority for a patent application in respect of the invention, whether or not he is the true inventor.
Where two or more persons are involved in the making of an invention, they may apply jointly for a patent right in respect of that invention. However, the person who has merely assisted in doing work connected with the development of an invention without contributing any inventive activity is not an inventor.
The Act also attempts to balance the interest of parties. Under its provision, where an invention is made in the course of employment or in the execution of a contract for the performance of specified work, the right to a patent is vested in the employer, or as the case may be the person who commissioned the work.
The question as to who has the right to a patent under the Act is therefore hinged on the question of whether or not the invention was made “in the course of employment, or in the execution of a contract for the performance of a specified work”. This has been interpreted by judicial authorities to mean that the use of the employer’s materials. The Act only provides that in such circumstance, the employee inventor will be only entitled to remunerations.
Section 3 of the Act provides for the formal requirements for a patent application, which state as follows:
(a) Shall be made to the Registrar and shall contain
(i) The applicant’s full name and address and if that address is outside Nigeria, an address for service in Nigeria.
(ii) A description of the relevant invention with any appropriate plans and drawings.
(iii) A claim or claims.
(iv) Such other matter as may be prescribed; and
(b) Shall be accompanied by
(i) The prescribed fee
(ii) 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
(iii) If the application is made by an agent, a signed power of attorney. An invention must be patentable before it can be registered, and trademark registration may be in form of words or logo only or combination of both.
Section 1 (4), (5) provides for the exceptions to patentability. These include plants or animal varieties, or essentially biological processes for the production of plants or animals. Inventions the publication of which will be contrary to public order and morality are also excluded, so also are principles of a scientific nature.
The process of patent registration in Nigeria is administered by the government agency that is very thorough and knowledgeable on what is supposed to be a patent or not, therefore, the Registry may reject any idea or invention that lack the requisite requirements for patenting.
However, a duly registered patent with a grant will 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 person from making, importing, selling or using it. Where it is a product, or where it is a process, the act of applying the process in respect of a product obtained directly by means of the process.
A patent shall expire after 20 years from the date of filing of the relevant 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.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080
