A practical Q & A guide to patent prosecution in Nigeria: procedures, timelines and strategies

Q1: What laws and regulations govern patents in Nigeria?

Patents in Nigeria are governed by a combination of domestic legislation, subsidiary instruments, and international treaties, though not all treaties are fully domesticated under Nigerian law. The core legal instruments include:

1. Patents and Designs Act 1970 (No. 60 of 1970): This is the principal legislation governing the grant, ownership, and enforcement of patent rights in Nigeria. It establishes the criteria for patentability, outlines the procedures for applying for a patent, and defines the rights conferred by a patent.

2. Patent Rules 1971 (L.N. 96 of 1971): These are subsidiary rules made pursuant to the Act, detailing procedural aspects such as filing requirements, forms, and fees.

3. Paris Convention for the Protection of Industrial Property: Nigeria acceded to the Paris Convention in 1963, and its provisions on priority rights and national treatment are directly incorporated into the Patents and Designs Act. The Convention plays a key role in allowing foreign applicants to benefit from international filing timelines and reciprocal rights.

4. Patents and Designs (Convention Countries) Order 1971 (L.N. 95 of 1971): This order designates countries that are party to the Paris Convention as “convention countries” for the purpose of claiming priority rights in Nigeria under Section 27 of the Act.

5. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): As a member of the World Trade Organization (WTO), Nigeria is bound by TRIPS, which sets minimum standards for patent protection and enforcement. However, TRIPS is not expressly referenced in the Patents and Designs Act and has not been domesticated by legislation.

6. Patent Cooperation Treaty (PCT) (as modified on October 3, 2001): Nigeria acceded to the PCT in 2005, enabling international patent applicants to designate Nigeria when filing PCT applications. Although, the PCT has  not yet been domesticated by national legislation , applicants are able to file PCT applications at the Trademarks, Patent & Designs Registry.

Q2: What are the requirements for an invention to be patentable in Nigeria?

Under Section 1 of the Patents and Designs Act 1970, an invention is patentable in Nigeria if it meets the following three core requirements:

1. Novelty: The invention must be new, meaning it does not form part of the “state of the art” that is, it has not been made available to the public anywhere in the world before the filing date or the validly claimed priority date, whether by written or oral disclosure, use, or any other means.
   

2. Inventive Activity (Non-obviousness): The invention must not be obvious to a person skilled in the art. It must not obviously follow from existing knowledge in its technical field, whether in terms of method, product, or industrial result.
   

3. Industrial Applicability: The invention must be capable of being manufactured or used in any kind of industry, including agriculture. In other words, it must have practical utility.

Additionally, an improvement upon a patented invention may also be patentable if it satisfies the three criteria above.

Note on Disclosure at Exhibitions: An invention is not considered to have lost its novelty if it was disclosed at an official or officially recognised international exhibition within six months before the patent application was filed in Nigeria.

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