The Nigerian Patents and Designs Act (PDA) lays out specific conditions that an invention must satisfy to be considered patentable. These requirements, as described in the this article, center around the concepts of novelty, inventive activity, and industrial applicability.
Novelty:
The invention must be new. This means it must not form part of the \”state of the art,\” which encompasses all knowledge that has been made available to the public, whether in writing or orally, before the date of the patent application filing.
The PDA emphasizes that the invention must not have been disclosed publicly in any way before the patent application is filed. This includes disclosure through publications, presentations, demonstrations, or even oral discussions. The only exception to this rule is when the inventor publicly displays the invention at an official exhibition within six months before filing the patent application.
The rationale behind the novelty requirement is to ensure that a patent is granted only for genuinely new contributions to knowledge and technology.
Inventive Activity:
The invention must result from \”inventive activity,\” also known as an \”inventive step.\” This means it must not be obvious to a person skilled in the relevant art or field of technology. In other words, the invention must involve a level of ingenuity or creativity that goes beyond what would be expected from someone with ordinary knowledge in the field.
The PDA uses the phrase \”does not obviously follow from the state of the art\” to describe the inventive step requirement. This implies that the invention must not be a mere incremental improvement or a straightforward combination of existing technologies. It should involve a new approach, a novel application, or a non-obvious solution to a technical problem.
Industrial Applicability:
The invention must be capable of industrial application. This means it must be possible to make or use the invention in some kind of industry, including agriculture. The invention should have practical utility and be capable of being produced or implemented on a scale beyond a purely theoretical or experimental level.
The PDA highlights that the industrial application requirement ensures that patents are granted for inventions that have real-world applications and contribute to technological advancement and economic activity.
Other Considerations:
- Improvements to Patented Inventions: The PDA also allows for patents to be granted for improvements upon existing patented inventions. However, these improvements must also meet the criteria of novelty, inventive activity, and industrial applicability.
- Excluded Subject Matter: Certain subject matter is explicitly excluded from patentability under the PDA. This includes:
- Plant and animal varieties
- Essentially biological processes for the production of plants or animals, other than microbiological processes and their products
- Scientific principles and discoveries
- Inventions whose publication or exploitation would be contrary to public order or morality.
Challenges with Patent Examination in Nigeria:
The Nigerian patent system currently operates a \”deposit system,\” meaning that patent applications undergo limited examination. The Registrar of Patents and Designs primarily checks for formal requirements, without rigorously assessing the novelty, inventive activity, or industrial applicability of the invention. This lack of substantive examination creates uncertainty about the validity of granted patents and may discourage local companies from filing patent applications.
Furthermore, the lack of expert patent examiners with specialized knowledge in various fields of science and technology exacerbates the challenges associated with patent examination in Nigeria. This limitation hinders the ability of the patent office to effectively assess the technical merits of inventions and ensure that only genuinely novel and inventive inventions are granted patent protection.