Introduction of Utility Model Patents in Nigeria
The Nigeria Patent law provides for formal examination of Patents as against substantive examination in most developed countries. Section 4 of Patents and Designs Act of Nigeria provides that once the patent application satisfies the statutory requirements as to form and relates to only one invention, the Registrar will grant the patent without enquiry if the 3 three basic criteria of registrability are met or whether the specification sufficiently discloses the invention. Therefore, patents are granted at the risk of the patentee and without guarantee of their validity in Nigeria.
However, recently, the Nigerian Patent Registry strangely and contrary to the Nigeria Patents and Designs Act, refused some patent registrations on the basis that their specifications are not registrable. Thereby casually strolling into the zone of substantive examination without any legal or statutory backing. This recent actions by the Registry have impressed on the Stakeholders that the Nigerian Patent Registry now offers substantive examination.
The Registry has further unwittingly expanded its powers by directing Applicants whose Patent applications have failed short of the Registry’s ‘substantive examination’ to file the applications as utility models patents. Yet again, registration of Utility Model Patents in Nigeria is not provided by the Patents and Designs Act.
Utility Model Patents
The strict criteria for Patent registration which exclude valuable inventions from protection where the inventions do not meet the three basic criteria of novelty, inventive step and capable of industrial application has made the introduction of utility model patent registration in Nigeria a very important, step.
The World Intellectual Property Organization, WIPO defines utility model patent as an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention without his authorization, for a limited period. It is one of three kinds of patents and may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture or composition of matter or any new or useful improvement. It is also, referred to as 'petty patents', ‘innovation patents', 'minor patents' or 'small patents', utility model patents have already been embraced by a number of jurisdictions in Africa, from Egypt, Senegal, Rwanda, ARIPO to OAPI.
Some features of utility model patents include:
1. It confers exclusive protection rights for the product and not process.
2. It is more appropriate for incremental invention.
3. Only a preliminary procedural examination is required for the grant of utility patents. There is no substantive examination for utility patent grant.
4. The rights conferred for the utility patents are similar to those granted by patent laws but have a shorter term.
5. The span of protection usually varies from 5-15 years.
6. The duration of registration of utility patents is less because utility patents are usually not examined prior to registration.
The advantages of Utility Models protection are numerous including protection of minor improvements on inventions; the registration is faster; it protects the Inventors from been commercially victimized by big companies; the registration of invention with low inventiveness etc. Also, it is a panacea for technology development in developing countries like Nigeria and it encourages local inventions in various sectors.
Summary
However, the concern of stakeholders on the recent recognition and registration of Utility Model Patents in Nigeria is the lack of legal provision and framework. The Patent and Design Acts of Nigeria does not provide for utility model patent registration, therefore any such registration may not be enforced nor recognized by the Courts.
