PREVIEW INTELLECTUAL PROPERTY LAW II
:: Definition: The law of patent is a branch of industrial property law.
:: For the purpose of this subject, industrial property law entails: Trademark (dealing with identification of products), Industrial design (the aesthetics and appearance of a product), Patent (Dealing with new inventions and how they function).
:: A patent is the legal right conferred on the inventor of a new, useful and exceptional product or process to exploit (i.e. sell, distribute, etc.) it to the exclusion of others.
:: Unlike Copyright which is generally conferred when the work is fixed in a definite medium of expression, Patents are granted in respect of registered inventions.
:: The patent system seeks to strike a balance between public interest (to access new inventions) and private right (of the creator to be rewarded for his outstanding invention).
BRIEF HISTORICAL DEVELOPMENT OF PATENT (EXAM PERSPECTIVE).
We are looking at it from the perspective of Britain.
The crown conferred monopoly on creative individuals as an incentive to innovate. As time went by, this power was abused and converted to a tool for dispensing political favour to persons who may be able to buy the protection. It worsened as patent was being granted in respect of already known products, necessities and mediocre inventions like playing cards (as was done in Darcy V Allin).
However, the development of trade and commerce made Britain realize the need to encourage competition and innovation and catch-up with other countries like France and Holland. To this effect, the Statute of Monopolies was promulgated in 1624. It cancelled all previous monopolies except those covering new inventions. A fourteen-year term of protection was accorded to the “true and first inventor” of an exceptional invention-see Section 6 of the Statute of Monopolies 1624.
Following a resolution at the International Patents Conference 1879, Britain and other colonialists extended their patent laws to their colonies (so as to protect their own interests.
The Patents Ordinance 1900 was enacted in Nigeria. Subsequently, the Patents Ordinance of 1916 was promulgated (Following the amalgamation of Northern and Southern Nigeria, in 1914). The Act provided that patents should be registered in the UK before coming to Nigeria to have it registered. This shows that the British had selfish intentions.
The first “indigenous” patent Act was enacted in 1970 as the Patents and Designs Act. Which is the presently applicable Act. Section 31 of the Act repeals all previous UK statutory provisions. The act also provides for registration in Nigeria as opposed to the hitherto existing requirement of registration in the UK.
Not all inventions can be patentable. We take it one by one:
WHAT IS AN INVENTION?
Not defined in the act. There is no all-encompassing definition. An invention can ordinarily be seen as a thing which a person creates. It has been defined as “a step forward in an art”. To “invent” (according to Encarta Dictionary) means to create something new. Note the following Legal provisions/principles:
***An invention is not the same thing as a discovery-Section 1(5) of the Patents and Designs Act. A discovery or scientific principle must be put into a new invention or process. (e.g. Ade discovers a new principle in building a car engine that reduces fuel consumption by up to 80 percent. This is not an invention. An invention would be when Ade makes a car that actually runs on that engine at a reduced fuel consumption rate)
:: By Section 1(1) for an invention to be patentable:
- It must be New.
- It must have resulted from inventive And
- It must be capable of industrial application.
- The invention may be an improvement which is new, results from inventive activity and capable of industrial application.
The requirements shall be explained briefly: (Section 1(2)).
Newness: The invention must not form part of “the state of the art”.
Section 1(3) defines “state of the art” to mean everything concerning the art or field of knowledge that has been made available to the public anywhere, anytime and anyhow. Except an exhibition in an officially recognised international exhibition (provided such exhibition occurred within 6 months from application for the grant of patent).
In essence, the invention must not have been known or disclosed to the public prior to the application for patent.
This requirement/test of newness is very wide. For example, an invention that is available in London shall be regarded as made available to the Nigerian public. The United States of America seems to look at the use made of it.
In Van der Lely V Bamfords, the plaintiff’s claim was for a hay-raking machine with the special feature of turning upon contact with the ground. The invention was held to have been anticipated by a photograph in a journal which showed this feature.
In F.I.S.A V Mentmore Manufacturing Ltd, the court construed publication where ball-point pens (the subject matter of the application) had earlier been gifted to three people.
In Windsurfing International Inc. V Tabur Marine (GB) Ltd, the newness test was defeated when a young boy had used a similar surf board (which was the subject matter of the patent application) on the beach.
Take for example; a Local boy in Bar Beach conceives the idea of making a surfboard. If he makes the surfboard, an application for patent (i.e. to prevent other people from making surfboards) would fail because a surfboard is already a common invention (i.e. in the state of the art). He may apply for protection under industrial design to prevent people from making a surfboard that closely resembles his own design. Note however if he makes a surfboard that can fly without touching water or a surfboard that converts the water to ice upon mere contact, that appears to be new and he may succeed in an application for a patent grant.
We move on to the next requirement:
Inventive Activity: (in Britain they say inventive steps). What this inventive activity means is that it must not obviously follow from the state of the art. It should not be common-place. The inventor must have intelligently exercised his inventive faculty. This question looks at the fact that although the invention is new, it is not innovative. You ask; to what extent does the invention (subject matter) differ from what was previously known? The test is objective. The personal feelings or opinion of the inventor is irrelevant. E.g. Ade makes a phone with 80 gigabytes storage capacity. The truth is that although the existing phones run from 8-64 gb storage, it is obvious that the claimant just added some more storage… there is nothing spectacular. But if for example, Ade makes a phone screen that never cracks/shatters or automatically repairs its cracks, then he may be able to claim patent protection as people would be impressed.
In Hills V Evans the court noted that the invention would fail this test if the state of the art is such that a person of ordinary knowledge of the subject matter would at once perceive and understand and be able (practically) to apply the discovery without the making of further experiments…. KINDLY DOWNLOAD THE FULL PDF NOTE THANK YOU.