A patent, according to the World Intellectual Property Organisation (WIPO) is an exclusive right granted for an invention. An invention, in itself, is a product or a process that provides, in general, a new way of doing something or offers a new technical solution to a problem.
Before a patent can be granted for an invention, technical information about the invention must be disclosed in a patent application. The body responsible for processing such applications is the Patents and Designs Registry. The public application is, however, not a license for the public to use such invention without the consent of the author or the expiration of the author’s exclusive right to such invention if granted. A patented invention has a life span of 20 years in Nigeria.
The Patents and Designs Act Cap P2 LFN 2010 is the law that provides for legal requirements to be satisfied before the patentability of computer programs in Nigeria.
It provides that an invention is patentable if it is new, results from inventive activity, and is capable of industrial application.
The Act went further to provide that an invention is also patentable if not novel, but If it constitutes an improvement upon a patented invention and is also new, resulting from an inventive activity and capable of industrial application.
The gist of the provision is that an invention is new if it does not form part of the state of the art, state of the art meaning everything concerning that art or field of knowledge that has been made available to the public anywhere and at any time.
This is whether by means of a written or oral description, by use, or in any other way before the date of the filling of the patent application relating to the invention.
The law provides, however, that an invention shall not be deemed to have been made available to the public because of the fact that within a period of six months preceding the filing of a patent application in respect of the invention, the inventor or his successor in title has exhibited it in an official or officially recognized international exhibition.
With regards to what will amount to an inventive activity, the act provides that an invention will be deemed to result from inventive activity if it does not obviously follow from the state of the art either as to the method, application, combination of methods, or the product which it concerns or as to the industrial result which it produces.
Lastly, an invention will be capable of industrial application if it can be manufactured or used in any kind of industry including agriculture.
A patent cannot be validly obtained in Nigeria for;
A) plant and animal varieties or essentially biological processes for the production of plants or animals (other than microbiological processes or their products)
B) Inventions whose publication or exploitation would be contrary to public order or morality
C) Principles or discoveries of a scientific nature
The last leg of the category of inventions that cannot be validly patented in Nigeria has been a ground through which the Nigerian patents and designs registry rejects the patentability of computer programs. However, an in-depth appraisal of what a computer program or software is will show that it does not fall within the category of a principle or discovery of a scientific nature rather it is an invention, an idea with elements of ingenuity and originality on the part of the author which ought to be protected from imitation.
Do you seek redress or consultation on legal matters?
Our Law Firm – Scotts Legal – offers specialized law services in areas including but not limited to the following:
- Fraud
- Family Law
- Legal Advice
- Civil Litigation
- Domestic Violence
- International Trade
- Commercial Litigation
- Intellectual Property
- Mergers & Acquisitions
- Corporate Restructurings
- Energy & Natural Resources
Follow us on our social media handles:
Constantly get our news updates and informative articles