How to Patent and Protect Your Idea

There are great opportunities for investment in this country. We are endowed with abundant raw materials and potentials for technological development.

An intellectual idea when it culminates into an invention can be protected by obtaining a patent. Patents are granted to inventors to encourage industrial and technological growth and deter others from exploiting or usurping the rights of the patentee.

 A Patent is a certificate granting exclusive rights to the owner of invention for the use or exploitation of his/her work.  To be patentable the invention must satisfy basic requirements. These are:

Novelty- it must be new and not known in the body of existing knowledge.  This body of existing knowledge is called the “prior art”

Inventiveness- it must show an inventive step and be non-obvious to an ordinary person skilled in the field of knowledge

Industrial applicability- it must be capable of industrial application. This determines the usefulness. An invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture

The Nigerian Patent law requires that an invention to be patentable should not have been previously used or known in Nigeria or elsewhere before the date of the application, must be industrially inclined, there should be a disclosure for a monopoly to be granted or should constitute an improvement on a patented invention.

One therefore needs to conduct a novelty search into existing patent specifications to establish the newness of an invention to determine the newness and prevent future litigation arising from infringement.

Patents consist of those of Nigerian origin and convention applications/patents whereby a priority document would have been filed in the country of origin. Nigeria is a signatory to the Paris Convention for the protection of industrial property. An application for the grant of a Patent in a convention country has the same priority as if the application was made in Nigeria at the application date. “Convention Countries” are listed in Patents and Designs Law.

To obtain a patent one has to file a patent application that includes a detailed description with relevant plans and drawings, claims that define the specific elements to be protected, a formal inventor’s declaration and the required filing fee to The Registrar of Patents and Designs, Registry of Trademarks, Patents and Designs, Federal Ministry of Commerce and Industry, Abuja. No. 5 Ndola Crescent, Wuse Zone 5, Abuja Telephone 234-314 5473, 234-9-671 5691-2 Email: iponigeria@yahoo.com kandibrah@yahoo.com

The Applicant may be the inventor or his Assignee who may be an individual or a corporation. The rights to a patent are vested in the statutory inventor, the person who is the first to file and register or validly claim a foreign priority for a patent application in respect of the invention.

The right conferred by the grant is to exclude others from making, selling or working the invention and to deter others from commercial use of the invention without authorization from the patentee. The patentee can choose to manufacture and sell the invention or can license another person to do so.

By this system, an inventor is rewarded with a temporary monopoly for discovering or improving a process or an article and disclosing it in form of a patent. A patent has a term of twenty years from the date of filing subject to the payment of the maintenance fee as prescribed by law. It is renewable annually and late renewal can be done within six months subject to a penalty.

Patent documents can be accessed through the Patent Information and Documentation Centre (PIDC) at the National Office for Technology Acquisition and Promotion (NOTAP) Plot 168 Cotonou Crescent, Wuse Zone 6, Abuja. NOTAP maintains a comprehensive depository of technology information in patent documents available globally.

Information on indigenous research results can be obtained from NOTAP’s publications such as the Industrial Project Profiles, Compendium of Research Results and Inventions stored in the database in the office.  NOTAP publications can be purchased from the Head office at 1, Blantyre Street, off Adetokunbo Ademola, Wuse 2, Abuja.

NOTAP can assist in facilitating the filing and grant of patent application. It assists in filling patent application free of charge but you have to complete the relevant forms which are available at the Office and supply the required information about the invention

Patenting Inventions through NOTAP

The National Office has been mandated to assist in the patenting of all inventions and innovations carried out by government funded Research Institutes and others in the Private sector. In doing this, NOTAP through its information network provides the following services:
(i.) Link the inventors with Patent Offices allover the world
(ii.) Assist inventors in drafting patent applications covering the invention in question.
(iii.) Process patent application through Industrial Property Offices.
The modern Nigerian law on patent is governed by the Patents and Design Acts Cap. 344 of the law of the Federation of Nigeria 1990(Act of 1970).It is administered by the Registrar of patent, trademark and industrial design which is under the umbrella of the Federal Ministry of Commerce, Abuja.
The law provides that a patent may be granted for an invention that:
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• is new
• involves an inventive step (not obvious)
• is capable of industrial application (useful)
• is not specifically excluded in the Act (e.g inventions the publication of which may encourage immoral and offensive behaviour)
• An address for service in Nigeria if the applicant's address is outside Nigeria.
• An application must date only to one invention but may cover claims for any number of products or processes.

If you have a convention application, that is an application claiming priority on the basis of an earlier application to register the patent made in a foreign country. By virtue of the patent and designs convention order 1971, .which provided that if the Nigerian application is made within 12 months of the making of the earlier application in the foreign convention country, such application will be treated as having been made on the same date on which the corresponding foreign application was made. An applicant seeking foreign priority to his
application will complete (form IB),a written declaration showing:

1. The date and the number of the earlier application:
2. The country in which such application was made ;and
3. The name of the person who made it.

Furthermore, not more than 3 months after filing the application, the applicant must furnish the Registrar with a copy of the earlier application, certified correct by the appropriate industrial property office of the foreign convention country.
Procedure for Patent Registration
Whether an invention is a product or process, the same registration procedure is adopted. Application for the grant of patent is made to the registrar of Patent and Industrial designs which is under the Federal Ministry of Commerce, Abuja. The application consists of:

• A petition or request for a patent with the applicant’s full name and address (form 1A)
• A signed power of attorney authorization of agent if the application is made by an agent (form 2)
• A specification including a claim or claims in duplicate (form 3)
• Plans and drawings if any in duplicate.
• A declaration by the true inventor where applicable

After Examiniation, the patent application is examined by the Registrar merely to ascertain formal compliance. Once the application satisfies the statutory requirements as to the completion of form, payment of appr9priate fees, it dates to only one invention, the Registrar is likely to grant the patent without enquiries to its novelty, inventiveness and industrial applicability or whether the specification sufficiently discloses the invention. Patents are granted at the risk of the patentee and without guarantee as to their validity. In other words, Nigerian law docs not recognize substantive examination. This is one weakness levied against the system.