Author; Margaret Ogbonnah

 

Introduction
Patent is an exclusive right granted for an invention for a maximum period of 20 years from the date of filing of the patent application. The right granted to the patentee prevents others from using the invention during the period granted. Inventions like every other type of intellectual property are intangible in nature, therefore its vulnerable to theft and illegal appropriation. Due to the high level of vulnerability, it is expedient for inventions to be duly protected by the government from the activities of imitators, pirates, and counterfeiters. This is because, without adequate protection of these inventions by the government, creators and inventors are denied certain rights and privileges. The aim of this article is to discuss the protection provided by the law to new inventions and improved inventions.

Conceptual Clarification of Patent.

A patent is an exclusive right granted in respect of an invention, which may be a product or a process that provides a new and inventive way of doing something or offers a new and inventive technical solution to a problem¹. It is usually a grant made by the relevant government authorities within a country to protect new inventions or improvements thereon that are considered to have improved the way(s) the earlier inventions were made or used. The law that governs Patents in Nigeria is the Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004.

There are generally three types of patents which are not limited to the following: utility, plant, and design.

a. Utility patents cover those who invent new or develop a new and useful improvement on processes and machines, as well as those who discover
new compositions of matter. Another name for utility patent is “patent for invention”. This includes things like machines, an original series of steps
for making something, and synthesized molecules and chemicals.
b. Plant patents are designated for those who discover or invent, and reproduce a new variety of plants. For instance, where a new type of “rose”
flower is reproduced and is different from what was in existence, that is, it is different in that the flower is thornless or has a different colour, then
a plant patent will be granted.
c. Design patents are reserved for creators of new ornamental designs for functional items. This could include the design of a piece of furniture or a
water bottle. Moreso, it is important to state that Nigeria, does not grant patents in respect of plants, animal varieties, or discoveries of a scientific nature unlike what obtains in the United States, Kenya and South Africa.

Registration of Patent
According to the Act, an application for a patent is made to the Registrar of Patents and accompanied by a description of the relevant invention with any
appropriate plans and drawings.² The Patents and Designs Act sets out conditions under which an invention will be deemed patentable. According to
the Act, an invention is patentable when³:
a. The invention, if it is new results from inventive activity and is capable of industrial application;
b. The invention if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial
application.
Moreso, it is important to state that according to the Act, an invention is new if it does not form part of the state of the art. An invention results from an inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns or as to the industrial result it produces ⁴. Also, the law further provides, that an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.

Protection of Patents
The right to a patent in respect of an invention is vested in the statutory inventor, that is to say, the person who, files or validly claims a foreign priority
for a patent application is the one who has right to a patent, whether or not he is the true inventor. A patent confers upon the Patentee the right to preclude any other person from doing any of the following acts⁵;
a. The act of making, importing, selling or using the product or stocking it for the purpose of sale or use; and
b. The act of applying the process or doing, in respect of a product obtained directly the process or doing, in respect of a product obtained directly by
means of the process, any other acts mentioned in paragraph (a) above.
Moreso, the scope of the protection conferred by a patent is determined by the terms of the claims; and the description (and the plans and drawings, if any)
included in the patent shall be used to interpret the claims. Every patent expires at the end of twenty years from the date of the filing of the relevant patent
application. It is also very important to state that a patent lapses if the prescribed annual fees are not duly paid in respect of it, after the expiration of the six months grace period provided by the law for payment of the annual fees and the surcharge. However, if the fees and any prescribed subs charge are paid within the six months period by the law, the patent shall continue as if the fees had been duly paid.⁶

Infringement of Patents
Although it is the law that patents are granted at the risk of the patentee and without the guarantee of their validity⁷, it constitutes an infringement of the patentee’s right when another person does or causes the doing of any act which that another person is precluded from doing such as making, importing, selling or using the product or stocking it for purpose of sale or use or the act of applying the process or doing in respect of a product obtained directly by means of the process any of the forbidden acts.

An infringing activity must be of an industrial or commercial character as things done for private or domestic use or under the license of the patentee or
compulsory licences or activities of governmental organizations do not constitute infringement.

The use of a patent after it has come into the public domain will not also constitute an infringement but natural and juristic persons will be adjudged
liable for any unauthorised violation of the patentee by awarding him some relief.⁸ The Federal High Court has exclusive jurisdiction for entertaining any
action brought under the Patents and Designs Act.

Remedies For Infringement of Patent Rights.
In an action for infringement of a patent, all such reliefs by way of damages, injunctions or otherwise shall be available to the plaintiff as is available in any
corresponding proceedings in respect of the infringement of other proprietary rights.

The remedies or reliefs available to a person whose patent rights have been infringed are:

Injunctions
Preliminary Injunction – Preliminary injunction restrains an accused infringer while a suit is pending to prevent irreparable injury to the patent owner.
Preliminary injunctions are available and usually granted at the discretion of the courts on the following conditions:
• The existence of a legal right;
• a substantial issue to be tried;
• Balance of convenience: the court considers this where the violation and not the existence of a plaintiff’s right is denied;
• Irreparable damage: this is usually granted where the applicant is able to show that he will suffer irreparable damage or injury if the defendant’s acts
are not restrained;
• Conduct of the parties: here the court will consider the conduct of the parties. Thus, where the applicant is in substantial breach of contract he
cannot get such an order against a defendant alleged to be in breach of the same;
• Undertaking as to damages;
• Likelihood of success on the merits and
• Public interest.

Permanent injunctions

They are granted if the claimant is successful at trial. That is where he has established his right and there has been an actual or threatened infringement of that right.

Damages
Compensatory damages. These may include the patentee’s lost profits, an established royalty, and a reasonable royalty. However, the court will not
increase damages if the infringer acted in good faith, for example without knowledge of the patent or with a reasonable belief he did not infringe or the
patent was invalid. The main objective for the award of damages is to compensate the plaintiff for the harm caused him.

Delivery up
The court in appropriate cases will order that all infringing articles in the possession, custody, or control of a person found guilty of infringing a patent be
delivered up for destruction.
An action for infringement of a patent can be brought at any time. There is no time limit for bringing an action for infringement of a patent.

 

Conclusion
In closing, it is not every invention that is new or results from an inventive activity that can be patented. The patenting process is designed to promote
industrial development. The objectives of patent registration are to provide incentives for the creativity of persons involved in various industries. Therefore,
an invention will not be patentable, if it is not industrially applicable.

Also, a duly registered patent gives the patent holder the right to prevent others from using the registered invention or to choose to permit the use by other
persons of such invention under agreed terms. It also gives the inventor the right to institute legal action against anyone who infringes on the registered invention and to make a claim for damages.

 

References

1. Section 3 of the Patent and Designs Act Cap. P2, Laws of the Federation of Nigeria 2004.
2. Section 1 of the patent and Designs Act Cap. P2, Laws of the Federation of Nigeria 2004.
3. Section 2 of the Patent and Designs Act Cap. P2, Laws of the Federation of Nigeria 2004.
4. Section 7 of the Patent and Designs Act. Cap. P2, Laws of the Federation of Nigeria 2004.
5. Section 4 of the Patent and Designs Act Cap. P2, Laws of the Federation of Nigeria 2004.
6. Section 25 of the Patent and Designs Act Cap. P2, Laws of the Federation of Nigeria 2004.
7. https://thenigerialawyer.com/protection-of-patents-in-nigeria-a-review/ last seen on 26/04/2023
8. http://www.resolutionlawng.com/patents-law-in-nigeria/last seen on 26/04/2023
9. https://www.igi-global.com/article/intellectual-propertyrights-protection-in-nigeria/253103 seen on 26/04/2023

 

 

DISCLAIMER
This article is for information purpose, it may, or may not reflect the current position of the law and is therefore not intended to provide legal advice or
guidance on litigation or provide commentary on any pending case or legislation.