INTELLECTUAL PROPERTY

Intellectual property refers to creations of the mind such as inventions; literary and
artistic works and symbols, names and images used in commerce. It is divided into two
categories:
a) Industrial Property includes patents for inventions, trademarks, industrial
designs and geographical indications.
b) Copyright covers literary works (such as novels, poems and plays), films, music,
artistic works (e.g., drawings, paintings, photographs and sculptures) and
architectural designs. Rights related to copyright include those of performing
artists in their performances, producers of phonograms in their recordings, and
broadcasters in their radio and television programs.

Intellectual property rights

Intellectual property rights allow creators, or owners, of patents, trademarks or

copyrighted works to benefit from their own work or investment in a creation. These
rights are outlined in Article 27 of the Universal Declaration of Human Rights, which
provides for the right to benefit from the protection of moral and material interests
resulting from authorship of scientific, literary or artistic productions.

Why protect intellectual property

a) the progress and well-being of humanity rest on its capacity to create and invent
new works in the areas of technology and culture.
b) the legal protection of new creations encourages the commitment of additional
resources for further innovation.
c) the promotion and protection of intellectual property spurs economic growth,
creates new jobs and industries, and enhances the quality and enjoyment of life.
d) Intellectual property rights reward creativity and human endeavor, which fuel
the progress of humankind.

An efficient and equitable intellectual property system can help all countries to realize
the intellectual property’s potential as a catalyst for economic development and social
and cultural well-being. The intellectual property system helps strike a balance between
the interests of innovators and the public interest, providing an environment in which
creativity and invention can flourish, for the benefit of all.

A. Patents
A patent is a document, issued, upon application, by a government office (or a regional
office acting for several countries), which describes an invention and creates a legal
situation in which the patented invention can normally only be exploited
(manufactured, used, sold, imported) with the authorization of the owner of the patent.

“Invention” here means a solution to a specific problem in the field of technology. An

invention may relate to a product or a process. The protection conferred by the patent
is limited in time (generally 20 years). A patent provides patent owners with protection
for their inventions. 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. Examples are electric lighting (patents held by Edison and Swan) and sewing
machines (held by Howe and Singer), to magnetic resonance imaging (MRI) (held by
Damadian) and the iPhone (held by Apple).

Benefits of Patents

a) Patents provide incentives for economically efficient research and development

(R&D). A study conducted annually by the IPTS shows that the 2,000 largest
global companies invested more than 430 billion euros in 2008 in their R&D
departments. If the investments can be considered as inputs of R&D, real
products and patents are the outputs. Based on these groups, a project named
Corporate Invention Board, measured and analyzed the patent portfolios to
produce an original picture of their technological profiles. Supporters of patents
argue that without patent protection, R&D spending would be significantly less
or eliminated altogether, limiting the possibility of technological advances or
breakthroughs. Corporations would be much more conservative about the R&D
investments they made, as third parties would be free to exploit any
developments. This second justification is closely related to the basic ideas
underlying traditional property rights. Specifically, "the patent internalizes the
externality by giving the [inventor] a property right over its invention”.
b) In accordance with the original definition of the term "patent", patents are
intended to facilitate and encourage disclosure of innovations into the public
domain for the common good. Thus, patenting can be viewed as contributing to
open hardware after an embargo period (usually of 20 years). If inventors did not
have the legal protection of patents, in many cases, they might prefer or tend to
keep their inventions secret (e.g. keep trade secrets). Awarding patents generally
makes the details of new technology publicly available for exploitation by anyone
after the patent expires, or for further improvement by other inventors.
Furthermore, when a patent's term has expired, the public record ensures that
the patentee's invention is not lost to humanity.
c) In many industries (especially those with high fixed costs and either low marginal
costs or low reverse engineering costs — computer processors, and
pharmaceuticals for example), once an invention exists, the cost of
commercialization (testing, tooling up a factory, developing a market, etc.) is far
more than the initial conception cost. (For example, the internal rule of thumb
at several computer companies in the 1980s was that post-R&D costs were 7-to-
1. One effect of modern patent usage is that a small-time inventor, who can afford
both the patenting process and the defense of the patent, can use the exclusive
right status to become a licensor. This allows the inventor to accumulate capital
from licensing the invention and may allow innovation to occur because he or
she may choose not to manage a manufacturing build-up for the invention. Thus,
the inventor's time and energy can be spent on pure innovation, allowing others
to concentrate on manufacturability.
 What kinds of inventions can be protected?
To qualify for a patent an invention must be:
1. a process or method for producing a useful, concrete, and tangible result (such
as a genetic engineering procedure, an investment strategy, computer software,
or a process for conducting e-commerce on the Internet)
2. a machine (usually something with moving parts or circuitry, such as a cigarette
lighter, a sewage treatment system, a laser, or a photocopier)
3. an article of manufacture (such as an eraser, a tire, a transistor, or a hand tool)
4. a composition of matter (such as a chemical composition, a drug, a soap, or a
genetically altered life form), or
5. an improvement of an invention that fits within one of the first four categories.

If an invention fits into one of the categories described above, it is known as

"statutory subject matter" and has passed the first test in qualifying for a patent.
But an inventor's creation must overcome several additional hurdles before the
patent is issued. The invention must also:

6. have some usefulness (utility), no matter how trivial

7. be novel (that is, it must be different from all previous inventions in some
important way)
8. be non-obvious (a surprising and significant development) to somebody who
understands the technical field of the invention.

For design patents, the law requires that the design be novel, non-obvious, and
non-functional. For example, a new shape for a car fender, a bottle, or a flashlight
that doesn't improve its functionality would qualify.

Finally, plants may qualify for a patent if they are both novel and nonobvious.
Plant patents are issued less frequently than any other type of patent.

The following items are just some of the things that might qualify for patent
protection:
biological inventions business methods
carpet designs chemical formulas or processes
clothing accessories and designs computer hardware and peripherals
computer software containers
cosmetics decorative hardware
e-commerce techniques electrical inventions
electronic circuits fabrics and fabric designs
food inventions furniture design
games (board, box, and housewares
instructions)
Internet innovations jewelry
laser light shows machines
magic tricks or techniques mechanical inventions
medical accessories and devices medicines
musical instruments Odors (perfumes)
plants recreational gear
sporting goods (designs and
equipment)

Patenting in Nigeria
The Patents and Designs Act of 1971 Cap. 344 is the substantive law governing
affairs of patents in Nigeria, while the Patent Rules regulates the procedures
adopted at the Patent Registry. Under section 26 Patent and Designs Act, the
Jurisdiction to hear and dispose of legal proceedings under the PDA is vested in
the Federal High Court and the section also provides that the provisions of the
Trade Marks Act applicable to legal proceedings under the Act shall apply with
necessary modifications to legal proceedings under the PDA.

Every patent application made in Nigeria shall contain a petition or request for a
patent signed by the applicant or his agent and containing the applicant’s full
name and address; a specification, including a claim or claims in duplicate; plans
and drawings, if any, in duplicate; where appropriate, a declaration signed by the
true inventor requesting that he be mentioned as such in the patent and giving
his name and address; a signed power of attorney or authorization of agent if the
application is made by an agent; an address for service in Nigeria if the applicant’s
address is outside Nigeria; and the prescribed fee.

A patent application shall relate to only one invention, but may include in
connection with that invention, claims for any number of products or for any
number of manufacturing processes for those products, and for any number of
applications of those products. It may also include claims for any number of
processes, and for the means of working those processes, for the resulting
product or products and for the application of those products.
Under the provisions of the PDA, the Registrar is only permitted to examine
every patent application as to its conformity with certain sections of the Act, such
examination being in essence formal in nature. There is no provision in the Act
on the substantive examination of a patent application.

Every patent in Nigeria shall lapse at the end of the twentieth year from the date
 of the filing of the relevant patent application. A patent shall also lapse if the
prescribed annual fees are not duly paid in respect of it, provided that a grace
period of six (6) months shall be allowed for the payment of the fees; and if the
fees and the prescribed surcharge are paid within that period, the patent shall
continue as if the fees had been duly paid.

Patents are granted by national patent offices or by regional offices that carry out
examination work for a group of countries – for example, the European Patent
Office (EPO) and the African Intellectual Property Organization (OAPI). Under
such regional systems, an applicant requests protection for an invention in one
or more countries, and each country decides whether to offer patent protection
within its borders. The WIPO-administered Patent Cooperation Treaty (PCT)
provides for the filing of a single international patent application that has the
same effect as national applications filed in the designated countries. An
applicant seeking protection may file one application and request protection in
as mans a recognizable sign, design, or expression which identifies products or
services of a particular source from those of others.

B. TRADEMARKS
Trademarks may be one or a combination of words, letters and numerals. They
may consist of drawings, symbols or three-dimensional signs, such as the shape
and packaging of goods. In some countries, non-traditional marks may be
registered for distinguishing features such as holograms, motion, color and non-
visible signs (sound - Jingles, smell or taste). A trademark may be located on a
package, a label, a voucher, or on the product itself. For the sake of corporate
identity, trademarks are being displayed on company buildings. A trademark
cannot be offensive. A trademark may be designated by the following symbols:
• ™ (the "trademark symbol", which is the letters "TM" in superscript, for an
unregistered trademark, a mark used to promote or brand goods)
• ℠ (which is the letters "SM" in superscript, for an unregistered service mark, a
mark used to promote or brand services)
• ® (the letter "R" surrounded by a circle, for a registered trademark)
Unlike patents and copyrights, trademarks do not expire after a set term of
years. Trademark rights come from actual “use” (see below). Therefore, a trademark
can last forever - so long as its owners continue to use the mark in commerce to
indicate the source of goods and services. A trademark registration can also last
forever - so long as long as specific documents are file and fees are paid at regular
intervals.
Benefits of trademarks
1. Trademark protection ensures that the owners of marks have the exclusive
right to use them to identify goods or services, or to authorize others to use
them in return for payment.
2. Trademark protection is legally enforced by courts that, in most systems,
have the authority to stop trademark infringement.
3. In a larger sense, trademarks promote initiative and enterprise worldwide by
rewarding their owners with recognition and financial profit.
4. Trademark protection also hinders the efforts of unfair competitors, such as
counterfeiters, to use similar distinctive signs to market inferior or different
products or services.
5. Trademarks enables people with skill and enterprise to produce and market
goods and services in the fairest possible conditions, thereby facilitating
international trade
6. The registration and protection of trademarks helps consumers to identify
and purchase a product or service based on whether its specific
characteristics and quality – as indicated by its unique trademark – meet their
needs.

How is a trademark registered?

The registration of a trademark must be filed with the appropriate national or
regional trademark office. The application must contain a clear reproduction of
the sign filed for registration, including any colors, forms or three-dimensional
features. It must also contain a list of the goods or services to which the sign
would apply. The sign must fulfill certain conditions in order to be protected as
a trademark or other type of mark. It must be distinctive, so that consumers can
distinguish it from trademarks identifying other products, as well as identify a
particular product with it. It must neither mislead nor deceive customers nor
violate public order or morality. Finally, the rights applied for cannot be the same
as, or similar to, rights already granted to another trademark owner. This may be
determined through search and examination by national offices, or by the
opposition of third parties who claim to have similar or identical rights.
Procedure for Registration of Trade Marks In Nigeria
The usual market practice is to instruct a local Attorney/Agent in Nigeria, who
would file and process applications at the Nigerian Registry of Trade Marks,
Patents, Designs and Copyright. A Power of Attorney/Authorization of Agent
Form would be completed in favor of such local Agent, as the enabling
instrument to act for the principal/ Applicant. Thereafter, all official documents
and forms would be submitted by the local Agent/Attorney. Until replaced or
substituted by another local Agent, the local Agent remains responsible for
processing registrations of the marks, defending Oppositions (if any), provides
address for local service of documents, and maintains renewals of the marks. A
local Agent/Attorney may be replaced or substituted by executing another Power
of Attorney/Authorization of Agent Form in favor of the succeeding Agent. NO
formal notices are necessary and the Agent with the more recent Authorization
is deemed to be the one with powers to act thenceforth.
How extensive is trademark protection?
Almost all countries in the world register and protect trademarks. Each national
or regional office maintains a Register of Trademarks containing full application
information on all registrations and renewals, which facilitates examination,
search and potential opposition by third parties. The effects of the registration
are, however, limited to the country (or, in the case of regional registration,
countries) concerned. To avoid the need to register separate applications with
each national or regional office, WIPO administers an international registration
system for trademarks. The system is governed by two treaties: the Madrid
Agreement Concerning the International Registration of Marks and the Madrid
Protocol. Persons with a link (be it through nationality, domicile or
establishment) to a country party to one or both of these treaties may, on the
basis of a registration or application with the trademark office of that country (or
related region), obtain an international registration having effect in some or all
of the other countries of the Madrid Union.

Onibokun, A (2016) How to register a Trademark in Nigeria. Accessed at

www.legalnaija.com
Patents and Designs Act, Chapter 344, Laws of the Federation of Nigeria 1990
Trade Marks Act, Chapter 436, Laws of the Federation of Nigeria 1990
What is Intellectual Property? WIPO Publication No. 450(E) ISBN 978-92-805-
1555-0