PROCEDURE FOR PATENT AND DESIGN PROTECTION
It should be noted most importantly that while patent only covers inventions, not all inventions are considered patentable.
Section 1 of the Patents and Designs Act[2] provides the grounds that qualify an invention for patent protection as follows:
(1) Subject to this section, an invention is patentable —
(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 first condition from Paragraph (a) states that the invention must be one that is new. A perusal of Section 1(3) of the Patents and Designs Act indicates that for an invention to be considered new, it must not be one known to the public not just in Nigeria, but anywhere around the world. A further examination of this subsection further defines that to satisfy the condition of novelty required for a product to qualify for a patent, no part of the idea must have been previously exposed to the public in any form or described through a written or oral medium. This can be interpreted to mean that it must not have been described in a book or through public speech.
Section 1(1)(b) of the Patents and Design Act which gives the second manner of invention that can be regarded as patentable provides that improvements to an invention by the expedition of inventive activity qualifies a product for patent and by extension, design. Section 1(2)(b) of the Patents and Design Act further states that what can be considered an improvement to an invention must be one that does not follow the normal state of art in respect of the methods or results produced.
Furthermore, the guideline for application of patents and designs in Nigeria is set out in Section 3-5 of the Patents and Designs Act. It provides that an application should be made to the Registrar containing the applicant’s full name and address and, if that address is outside Nigeria, an address for service in Nigeria, a description of the relevant invention with any appropriate plans and drawings, a claim or claims accompanied by-
(i) The prescribed fees;
(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.
More so, if the application is made by an agent, a power of attorney must be submitted. The Registrar is expected to determine the patentability or otherwise of patent applications before a grant is made. This examination is merely formal in nature and does not require a scientific examination as such is outside the scope of the duties and powers of the Registrar, as the Registrar is simply to ensure conformity with the requirements of the Act.
The Registrar would then issue a certificate evidencing the date of application, the number of the patent, as well as the name and address of the patentee followed by a publication of the grant[3]. It should be noted that a patent is only valid for 20 years after the grant of the patent application.
For the protection of “design”, the Act provides that any design that is new and not contrary to public policy or morality is registrable. It also provides that where the design has otherwise been shown to the public, the registrar must be satisfied that the creator is unaware of this fact[4].
The Act further provides that to register an industrial design a request for registration of the design shall be made to the Registrar containing
“the applicant’s full name and address and, if that address is outside Nigeria, an address for service in Nigeria; a specimen of the design or a photographic or graphic representation of the design with any printing block or other means of reproduction from which the representation was derived, an indication of the kind of product (or, where a classification has been prescribed, the class of product) for which the design will be used, such other matter as may be prescribed”[5]
This application is to be accompanied by the prescribed fee, and where necessary, a declaration signed by the true creator requesting that he be named as such in the register inclusive of his name and address and a power of Attorney where the application is by an agent.
