In this article, we want to examine what the Nigerian Patent Law says as regards the protection of computer programmes.
Before going into this in details, let’s first of all understand what a patent is.
What Is A Patent?
A patent, according to the World Intellectual Property Organisation (WIPO) is an exclusive right on 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 Nigerian Patents Law Governing Computer Programmes
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 new resulting from an inventive activity and capable of industrial application. Then, it can attract a patent right.
The gist of the provision is that an invention is new if it does not form part of the state of the art. In other words, this implies that everything concerning that art or field of knowledge must not be 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 Provision By The Nigerian Patent Law
The Nigerian Patent 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.
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. It must not follow the state of art, as to the method, application, combination of methods, or the product which it concerns or as to the industrial result which it produces.
Lastly, if an invention is usable in any kind of industry including agriculture, then it is capable of industrial application.
Restrictions On Obtaining Patent
Patent is not available for Nigerians in the following cases:
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 can’t attract the patent right is if there 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 that needs protection from imitation.
All of these covers the essentials you should know as regards the Nigerian Patent Law and protection of computer programmes.
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