EXPLOITING PATENT RIGHTS IN NIGERIA: THE CASE OF BEDDINGS AND STRANGE BEDFELLOWS

On the 5^th of June, 2012, a Federal High Court Judge delivered a remarkable judgment in Suit No FHC/ABJ/CS/82/11 instituted by Beddings Holdings Limited against INEC & 6 Others. The Hon. Justice A. Bello affirmed that the Patent and Industrial Design rights (RP 12994 and RD 5946 respectively), held by Beddings Holdings Limited (the Plaintiff) for the invention “Transparent Ballot Box” had been infringed by the Independent National Electoral Commission when it licensed the importation of transparent ballot boxes by 2 private Nigerian Companies also joined as parties to the suit, without seeking the requisite license from Beddings Holdings Limited. The imported Transparent Ballot Boxes were used for the 2011 General Elections. Beddings Holdings Limited had obtained both Patent and Design rights for the Transparent Ballot Box since January, 1998.

The Court’s ruling is significant in many ways, one of which is the somewhat extreme possibility that the outcomes of the 2011 General Elections and subsequent Electoral exercises may be nullified as a result of the unlicensed use of these ballot boxes by INEC. By importing and using these ballot boxes without the appropriate license or grant from the Inventor, INEC infringed on the right of the Patent Holder. Adopting the proposition that a bad tree cannot yield good fruit, it would appear that the infringement taints the results that proceed from the illegal use of the Transparent Ballot Boxes. This is a clear example of an instance where the courts have placed precedence on the personal rights of an individual over public policy.

A patent is a right granted to an inventor over an invention allowing the inventor to exclude others from manufacturing, using, importing, offering for sale or selling the patented invention.

Section 6 (1) of the Patents and Designs Act, Cap P3, LFN 2004 provides that:

6 (1) A Patent confers upon the Patentee the right to preclude any other person from doing any of the following acts-

(a) Where the patent has been granted in respect of a product, the act of making, importing, selling or using the product, or stocking it for the purpose of sale or use; and

(b) Where the patent has been granted in respect of a process, the act of applying the process or doing, in respect of a product obtained directly by means of the process, any of the acts mentioned in paragraph (a) of this subsection.

This case should serve as a lesson that Public (and Private) sector Organizations must respect and value the intellectual assets of any and all Nigerians. This is a Fundamental Right protected by the 1999 Nigerian Constitution.

Section 44 of the 1999 Constitution of the Federal Republic of Nigeria states that:

44. (1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –

(a) Requires the prompt payment of compensation therefore and

(b) Gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.

Unfortunately the court did not expressly address the effect of the infringement on the 2011 Elections and INEC’s electoral activities as the Plaintiff didn’t raise clear-cut issues along that line.

Another significant point that must not be lost on us is the Nigerian Judiciary’s increasingly amicable disposition to speedily protecting the rights of Intellectual Property owners. In the past, the slow, protracted litigation system served as a disincentive to the prosecution of IP Infringement. Intellectual Property Owners became skeptical about seeking legal redress with no definite end in sight. In recent times, Nigerian courts have shown eagerness to rescue IP Owners, thereby giving hope to innovators and creators.

From an economic perspective, the Patent system rewards creativity and innovation through the guarantee of exclusive rights of ownership to inventors. In return for this protection, the inventor (also called the Patentee) is required to disclose the workings and components of the invention, in order to promote widespread dissemination of innovation. This information is available to the public and may be used to create newer inventions, technologies, goods and services and so on. Securing Patent protection is the first step towards exploiting and commercializing an invention.

It is very unfortunate that we lose our Newtons, Einteins, Steve Jobs and Bill Gates, daily. Many Nigerian inventors and innovators live in obscurity, working from hand to mouth under hard conditions. They are hidden away in dark hallways and dirty corridors; confined to dilapidated stairways in Computer Village, Alaba international Market, Ladipo Market and similar locations around the country. Many would-be inventors are deactivated or neutralized by JAMB and the educational system; they are forced into professions without regard to their natural aptitude and live repressed and unfulfilled among the working class.

Nigeria already loses Trillions of Naira annually in lost revenue and opportunity cost from unexploited Intellectual Assets. The commercialization process will create thousands of jobs, generate revenue for Government in the form of taxes and filing fees and improve the quality of life of the citizenry and significantly boost our GDP.

The Beddings Holding judgment presents a ray of hope for the Nigerian inventor. Current reality, based on a personal study conducted in conjunction with the Intellectual Property Institute Nigeria, shows that over 95% of the registered patents in Nigeria belong to foreigners and non-Nigerians. Does this mean Nigerians don’t invent or are not creative?

Nigeria can boast of Mohammed Abba, Oviemo Ovadje, Emeka Emeagwali and other notable inventors. A cursory perusal would show that Nigeria is a country of innovators replete with inventors in various fields. Tragically, the commercialization process is largely misunderstood and these inventions are neither protected nor properly exploited. For example, a common assumption is that Patents apply only to mechanical inventions. Patents can be obtained and exploited for inventions in practically all fields of endeavor. Nigeria is a country in need and Necessity, the mother of invention, is a Nigerian citizen. The multi-faceted problems in every area of society present us with the opportunity to invent our way out! In the 21^st Century, we must recognize the need to innovate our way to the future.

The Patents and Designs Act, Cap P2, LFN 2004, states the requirements for patentability in Nigeria. In particular, Section 1 (a) and (b) provides that (emphasis mine)

(1) Subject to this section, an invention is patentable-

(a) If it is new, results from inventive activity and is capable of industrial application; or

(b) If it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.

We can create new innovative solutions that solve everyday problems. Young Nigerians need to see the bigger picture; if we are to build a future for this country, we must take advantage of innovation, invention and creativity to reinvent Nigeria.

©2012 Folarin Aluko.

Folarin Aluko, a Legal Practitioner, is a Director of The Intellectual Property Institute (Nigeria)

e: fola.aluko@ipinstitute.org.ng