Patent Infringement In Nigeria
An action for Patent Infringement must be brought in the Federal High Court in Nigeria.
The action can be brought when a third party, without the consent of the patent holder, makes, import, sell products or applies the subject matter of the patent in order to create products for commercial purposes.
An action for patent infringement can last anywhere from two years up to a number of years with cases even lasting for more than a decade.
A patent granted in Nigeria is issued by the Nigerian registry without a substantive examination to determine whether the descriptions and claims satisfy the requirement of Nigerian law that the invention must be novel and have industrial applicability and that it does not relate to non-patentable matter, for example, a plant or animal variety. You can also take the help of Intellectual Properties Attorney Lagos as they will provide the right legal solution which is required in this process.
Therefore, the grant of the Nigerian patent is made without a guarantee of validity.
Section 4(4) of the Patents and Designs Act 1970 provides: “Patents are granted at the risk of the patentee and without guarantee of their validity”
A Nigerian patent is granted without the Registrar looking into whether the application meets the requirement for patentability.
The Registrar only examines the application to ensure that all the documents which are required to be filed have been filed. Once he is satisfied that the formal requirements have been met, he proceeds to issue the Letters Patent.
Consequently, the fact that one has been issued with a patent certificate in Nigeria does not mean that the patent is valid. The validity is open to challenge in court, and if challenged, the primary onus of proving validity rests on the patentee. Thus the Nigeria patent system is called the deposit system of patenting.
It is different than the examination system adopted in the industrialized countries, such as the United States, countries of the EU and Japan, where rigorous examination as to compliance with the requirements for patentability is undertaken.
As a result, a defendant in a patent infringement case could assert that a Nigerian patent is null and void because it is not new, lacks industrial applicability or is based on a non-patentable matter.
A defendant could also assert that the descriptions as contained in the patent specification does not disclose the relevant information in a manner sufficiently clear and complete for the invention to be put into effect by a person skilled in the art or field of knowledge to which the invention relates or; or that the claims do not define the protection sought or even that they go beyond the scope of the protection. A Patent Litigation Attorney Nigeria from AA Tejuoso & CO will have good experience and knowledge in Intellectual property rights and patents and they will provide you the right solutions at the best prices.