Patent and How Patent is Granted

Patent and How Patent is Granted

patent is an exclusive right granted for an invention – a product or process
that provides a new way of doing something, or that offers a new technical solution
to a problem. A patent provides patent owners with protection for their

Protection is granted for a limited period, generally 20 years. Patents
provide incentives to individuals by recognizing their creativity and offering
the possibility of material reward for their marketable inventions. These incentives
encourage innovation, which in turn enhances the quality of human life.

patent owner has the right to decide who may – or may not – use the patented
invention for
period during which it is protected. Patent owners may give permission to, or
license, other
to use their inventions on mutually agreed terms. Owners may also sell their
invention rights to someone else, who then becomes the new owner of the patent.
Once a patent expires, protection ends and the invention enters the public
domain. This is also known as becoming off patent, meaning the owner no longer
holds exclusive rights to the invention, and it becomes
for commercial exploitation by others.
The Patent and Designs Act of 1990 is the governing Patent law in
Nigeria and prescribes if and whose product may be granted the statutory
rights. S.344 of this act lays down rules that determine if a product Patented
in favor of the inventor.
law states that an invention is Patentable if:
  • It is
    Section 1 (2) of the act states that it will qualify as new when it does
    not form part of the state of the art. The term “state of the
    art” means to that field of knowledge that has been made available to
    the public anywhere and anytime whether by oral, written description or by
    public use. However this invention shall not be regarded as having been
    made available merely because a person exhibits to the public his own
    invention within a period of six months preceding the filing of a
    patent by another inventor. This rule is adhered to whether or not it has
    been exhibited in an officially recognized international exhibition.
  • Resulted
    from inventive activity and is capable of use in an industry.
  • Constitutes
    an improvement on a patented invention.
The rights to a patent are vested in the
“Statutory Inventor” who is simply the first person to file and
register their patent and is legally credited with being the inventor. The law
however is sensitive to sharp practices or unfair scenarios that may occur as a
result of this “first come, first served” system. Section 2(2) of the
act enables the possibility of redress by reassigning the rights to an
invention, to a person who is adjudged the true inventor whether or not he is
the first to register a product.
Nigeria, the first step in securing a patent is to file a patent application. Applications
for a patent must be made to the Registrar of Patents and Copyrights. A search
must first be carried out to ensure that the product has not already been
patented. The importance of a search in order to avoid a possible legal
backlash cannot be overstressed. The fact that nothing similar to your product
is in the market is not an indication that it or something too similar hasn’t
already acquired patent rights. After the search has been completed the
inventor is free to go ahead and proceed with registration.
application can then be made to the registrar and must contain
  • The applicant’s full name and
    address. If the applicant’s address is outside Nigeria then a service
    address will be admissible.
  • The description of the relevant
    invention along with any plans and drawings appropriate.
  • A claim that defines the
    particular protection or rights
    sought after by the applicant.
  • Such other matter as may be
    prescribed depending on the facts of the application.
requirements will be accompanied by:
A prescribed fee
Where appropriate, a declaration by the true inventor requesting that he be
mentioned as such in the Patent with his name and address.
In event of where a legal practitioner makes the application on behalf of the
applicant, a signed Power of Attorney will be required.
awarded the Patent rights the inventor is free to exercise his rights over it
as he may choose. He may if he chooses, decide to assign his proprietary rights
over the invention to any person he wishes in any geographical territory. He
may also upon consideration or payment, grant a Patent license to another party
on terms agreeable to him.
 The application generally contains the title
of the invention, as well as an indication of its technical field. It must
include the background and a description of the invention, in clear language
and enough detail that an individual with an average understanding of the field
could use or reproduce the invention. Such descriptions are usually accompanied
by visual materials – drawings, plans or diagrams – that describe the invention
in greater detail. The application also contains various “claims”, that is, information
to help determine the extent of protection to be granted by the patent.
property can usefully be divided into two main areas:
  • One area can be characterized
    as the protection of distinctive signs, in particular trademarks (which
    distinguish the goods or services of one undertaking from those of other
    undertakings) and geographical indications (which identify a good as
    originating in a place where a given characteristic of the good is
    essentially attributable to its geographical origin). The protection of
    such distinctive signs aims to stimulate and ensure fair competition and
    to protect consumers, by enabling them to make informed choices between
    various goods and services. The protection may last indefinitely, provided
    the sign in question continues to be distinctive.
  • Other types of industrial
    property are protected primarily to stimulate innovation, design and the
    creation of technology. In this category fall inventions (protected by
    patents), industrial designs and trade secrets.

    The social purpose is to provide protection for the results of investment
    in the development of new technology, thus giving the incentive and means
    to finance research and development activities.

    A functioning intellectual property regime should also facilitate the
    transfer of technology in the form of foreign direct investment, joint
    ventures and licensing.

    The protection is usually given for a finite term (typically 20 years in
    the case of patents).

the basic social objectives of intellectual property protection are as outlined
above, it should also be noted that the exclusive rights given are generally
subject to a number of limitations and exceptions, aimed at fine-tuning the balance
that has to be found between the legitimate interests of right holders and of