As Africa’s economic significance grows, so does the need for patent protection in the continent.
Patents in Nigeria
Africa is sometimes seen as being challenging, partly because of the co-existence of national and regional registration systems. We will therefore be producing a series of country or region-specific patent law updates. This is the third in that series, and it deals with Nigeria.
With a population of 186 million, Nigeria is Africa’s most populous country. Nigeria’s population is, in fact, growing so fast that it is set to become the world’s third most populous country by 2050, overtaking the USA. Nigeria also has Africa’s largest economy (GDP US$406 billion), having overtaken South Africa a few years back. Nigeria’s economy spans many areas including oil, manufacturing, financial services and entertainment services.
When it comes to patents, the legislation is the Patents and Designs Act, Chapter 344, 1990. Nigeria is a member of the Paris Convention, the World Intellectual Property Organisation (WIPO), and the Patent Convention Treaty (PCT).
The legislation says that a patent application can be filed by the ‘statutory inventor’, who is defined as the person who, whether or not the true inventor, is the first to file an application or validly claim a foreign priority. The true inventor is, however, entitled to be named in the patent.
In the case of an invention made in the course of employment the right to the patent vests in the employer, although the employee will be entitled to fair remuneration if the invention is of exceptional importance.
Patents of invention can be registered. To be patentable an invention must be new, involve an inventive step, and be capable of industrial application. An invention is also patentable if it constitutes an improvement upon a patented invention and, in addition, is new, results from inventive activity and is capable of industrial application. There are various exclusions covering, inter alia, plant or animal varieties.
Absolute (worldwide) novelty is required. Novelty is not destroyed if the disclosure occurred within six months of the filing of the application through exhibition by the inventor or their successor-in-title at an official or officially-recognised international convention.
The patentee has the right to stop others from doing the following: making, importing, selling or using the patented product, and stocking the product for the purpose of sale or use. In the case of a process, the patentee has the right to stop others applying the process, or doing in respect of a product obtained through the process any of the prohibited acts mentioned earlier. The patentee’s rights extend only to acts done for industrial or commercial purposes.
How to patent in Nigeria?
There are specific procedural requirements for non-PCT patents and national phase PCT applications. In Nigeria there is a formal examination but no substantive examination. In the words of the legislation, patents are granted ‘at the risk of the patentee and without guarantee of their validity.’ There is no procedure for opposition, but there is provision for cancellation (revocation).
A patent lasts for 20 years from the filing date and renewal fees are due annually from the first anniversary of the filing date – with PCT national phase applications the filing date is deemed to be the PCT international filing date.
There is provision for compulsory licensing in cases where the patented invention is not being used on a commercial scale in a way that reasonably meets the demand for the product within four years from filing or three years from grant, whichever period expires first.