• About Us
  • Contact Us
  • Advertise
  • Privacy Policy
Tuesday, March 21, 2023
Niger Delta Today
ADOVIC Technology
  • Home
  • Niger Delta
    • Abia State
    • Akwa Ibom
    • Bayelsa State
    • Cross River
    • Delta
    • Edo
    • Imo
    • Ondo
    • Rivers
  • National News
  • Politics
  • Metro
  • Business
  • Entertainment
  • Editorial
  • Opinion
No Result
View All Result
  • Home
  • Niger Delta
    • Abia State
    • Akwa Ibom
    • Bayelsa State
    • Cross River
    • Delta
    • Edo
    • Imo
    • Ondo
    • Rivers
  • National News
  • Politics
  • Metro
  • Business
  • Entertainment
  • Editorial
  • Opinion
Niger Delta Today
No Result
View All Result

NDT LEGAL CORNER: Patent Right In Nigeria And Ownership Of An Invention In The Course Of Employment 

by Niger Delta Today
September 6, 2022
in Opinion
0
Share on FacebookShare on TwitterShare on WhatsAppShare on Telegram

By Adaka Eloghene Esq.

A patent is a type of intellectual property right which affords protection and monopoly over an invention created, in the case of Arewa Textile &ors v Fintex Ltd a patent was defined as a document issued by the government upon application by an inventor which describes the invention and confers the right to prevent others from commercial exploitation such as use, sale, manufacture, export, storage for sale of the invention, as a means of promoting technological and industrial development. 

Recommended For You

NDT LEGAL CORNER: SCUML Certificate And Its Relevance To Businesses  In Nigeria 

NDT LEGAL CORNER: Unilateral Reduction Of Wages As A Disciplinary Measure Under Employment In Nigeria

NDT LEGAL CORNER: Contract Of Employment And The Enforceability Of Service Training Bonds In Nigeria

NDT LEGAL CORNER: Protection Of Trade Secrets For Business 

 As it relates to patents right, the laws governing the protection of a patent differ from one country to another, and patent protection enjoyed in one jurisdiction does not guarantee patent protection in another jurisdiction this is because intellectual property rights are territorial. This simply means that if a person registers his invention in Nigeria to enjoy a patent right, he shall only enjoy protection over his invention in Nigeria and this protection would be limited to Nigeria alone, and such if a person would wants to enjoy protection over his invention in any jurisdiction .he would need to register his invention in such country he wishes to enjoy protection.

In Nigeria, the Patents and Designs Act Provides for the regulations which guide an invention or a patent right in Nigeria,  the registration of a patent in Nigeria gives the inventor an exclusive right to use, manufacture and exploit the product or process so invented for twenty years (20) . For an invention to qualify for patent registration Section (1) of the patent act provides for three requirements which include for such invention to be 

  1. New
  2. Result from an inventive activity 
  3. Capable of industrial application

New – The first requirement, newness or novelty, entails that a discovery must be completely unknown anywhere in the world when the application for the patent is filed, thus where anybody had made the discovery before the applicant, or even if the applicant himself had disclosed the discovery before the filing of the patent application, a valid patent could not be granted to him. Thus, an invention ought not to be disclosed either by publication at any time either oral, written or by usage . 

The next element inventive activity entails an invention must stem from a creative idea and should be a step not noticeable to persons skilled in a particular field . Essentially, this means that the invention should not be obvious to a person skilled in the art of the field to which the invention relates, and where it is obvious to such experts. It lacks inventiveness and cannot be termed an invention. In Technograph Printed Circuits Ltd. v. Mills & Rockley (Electronics) Ltd.]; it was held that in considering whether an invention is obvious, it is necessary to examine the question of whether the new product or process could have been suggested by persons skilled in the art and undertaking a study of other relevant documents which a diligent researcher would know about. 

The last element considered under the Act is industrial application entails the invention capable of    “being manufactured or used in any kind of industry” and useful to provide some practical benefit .

OWNERSHIP OF A PATENT MADE IN THE COURSE OF EMPLOYMENT  IN NIGERIA 

In determining ownership of a patent in Nigeria, the legal principle of inventorship status and ownership has to be clearly understood as it relates to patent. Inventorship status under patent right deals with an individual or set of individuals who have contributed to the creation of subject matter , while The concept of ownership is associated with the parties (individuals or entities) who own the proprietary or exclusive rights of an invention and can enjoy the commercial benefits of such invention provided which include bargaining power, market exclusivity and licensing power. 

While it is very straightforward in most cases as to who owns a patent, in the course of employment it’s common for issues to arise as to who owns the patent over an invention made by an employee under the course of employment, or when a person has been commissioned to make an invention for a fixed price on behalf of another.

 In determining who owns the right to a patent made by an employee in the course of employment in Nigeria, Section 2(4) of the Patent and Designs Act gives guidance as it provides that “Where an invention is made in the course of employment or the execution of a contract for the performance of specified work, the right to a patent in the invention is vested in the employer or, as the case may be, in the person who commissioned the work”. An invention can however be said to be in the course of employment where an employee makes use of an employer’s time, resources such as data, money, lab, materials equipment etc in coming up with an invention. 

In The common law case, Patchet v Sterling the court further interpreted the phrase “ in the course of employment “ to mean where an employee makes use of an employer’s time and resources in making an invention which falls within his duty. 

 in an instance where an employee makes an invention in his spare time (outside of his working hours ) and does not make use of any of his employer’s materials , such an employee would own the right over such invention.

Questions might also arise as to who owns the right over an invention when an employee makes such an invention during his spare time but uses the materials on his employer .or makes an invention that his contract of agreement did not require him to make in the course of employment . The Act in Section 2(4a) answers this by stating that where an employee makes an invention which his contract of employment does not require him to exercise any inventive activity but he has in making the invention used data or means that his employment has put at his disposal such employer shall have the right over such invention and such an employee shall be entitled to fair remuneration taking into account his salary and the importance of the invention. 

 The Act also goes further in Section 2(4)b to provide that in an instance where an employee in the course of employment makes an exceptional invention, such an invention shall belong to his employer and he shall also be entitled to a fair remuneration taking into account his salary and the importance of his invention .  For instance, where an employee scientist who works in a university invents the cure for cancer or covid 19 in the course of his employment  such would be viewed as being of exceptional importance, and such an employer (the university ) would be deemed to be the owner of such an invention and provide such employee with fair remuneration for coming up with such an invention 

In conclusion, it can be seen that where an invention is made by an employee in the course of employment, his or her employer would be deemed to own the rights over such an invention, and in an instance where such an employee applies for a patent over such an invention, his or her employer has the right to order for the transfer of such a patent to himself

. 

Adaka Eloghene Esq. can be reached on her Email: Adakaelo@gmail.com

Tags: Eloghene Adaka EsqNDT Legal Corner
ShareTweetSendShare
Previous Post

Group Tackles Lagos Assembly Member Over Unreasonable Patriotism

Next Post

NDDC: Anti-Niger Delta Forces Frustrating Plans To Inaugurate A Substantive Board – Stakeholders

Related Posts

Prof Hope Eghagha

Rigged Elections And The Moral Burden Of Illegitimacy By Hope O’Rukevbe Eghagha

March 20, 2023
Dr. Goodnews Agbi, NNPP governorship candidate addressing party supporters in Delta State

Goodnews Agbi: The Man, His Vision For A Greater Delta

March 16, 2023
Senator Ovie Omo-Agege

BANDing Together With Omo-Agege To Save ‘Delta’s Bleeding Big Heart’ By Ogaga Ifowodo

March 14, 2023
Prof Hope Eghagha

Congratulating Senator Bola Tinubu By Hope O’Rukevbe Eghagha

March 13, 2023
APC Leader, Asiwaju Bola Ahmed Tinubu

Opinion: Bola Tinubu, May Your Road Be Rough! By Abiodun Komolafe

March 12, 2023
Festus Adedayo

Now That We Have Arrived Rwanda By Festus Adedayo

March 12, 2023

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

LATEST

Senator Ovie Omo-Agege

Omo-Agege Rejects Delta Governorship Election Result, Oborevwori’s Victory

March 20, 2023

INEC Declares PDP’s Oborevwori Winner Of Delta Guber Election

March 20, 2023

Delta Guber: NNPP’s Goodnews Agbi Concedes Defeat, Congratulates Governor-Elect Oborevwori

March 20, 2023
Bala Mohammed

PDP’s Bala Mohammed Beats Ex-Air Chief, Sadique Abubakar, Re-elected Bauchi Governor

March 20, 2023
Prof Hope Eghagha

Rigged Elections And The Moral Burden Of Illegitimacy By Hope O’Rukevbe Eghagha

March 20, 2023

POPULAR POSTS

  • Ohworode of Olomu with President Muhammadu Buhari

    World Oldest Monarch, Ohworode Of Olomu Kingdom, Joins Ancestors At 106

    0 shares
    Share 0 Tweet 0
  • Omo-Agege Rejects Delta Governorship Election Result, Oborevwori’s Victory

    0 shares
    Share 0 Tweet 0
  • Thugs Attack Polling Units, Destroy BVAS Machines In Evwreni, Delta State

    0 shares
    Share 0 Tweet 0
  • Omo-Agege Withdraws From Arise TV Debate After Oborevwori pulled Out

    0 shares
    Share 0 Tweet 0
  • Delta Guber: NNPP’s Goodnews Agbi Concedes Defeat, Congratulates Governor-Elect Oborevwori

    0 shares
    Share 0 Tweet 0
  • 2023: Omo-Agege Pledges To Pay 13th Month Salary To Delta Civil Servants As Governor

    0 shares
    Share 0 Tweet 0
  • Delta Guber: Ace Broadcaster, Godspower Omadhebor, Endorses Omo-Agege Of APC For Governor

    0 shares
    Share 0 Tweet 0
  • Social Media is Changing the Face of the Beauty Industry

    0 shares
    Share 0 Tweet 0
  • Niger Delta Today Editor, Onojeghen, Recovers From COVID-19

    275 shares
    Share 275 Tweet 0
  • University Of Nigeria To Honour Ex-Delta Governor, Uduaghan, With Honorary Doctorate Degree

    0 shares
    Share 0 Tweet 0

LIKE US ON FACEBOOK

  • About Us
  • Contact Us
  • Advertise
  • Privacy Policy

© 2019 NIGER DELTA TODAY - Published By NDT Associates Ltd.

No Result
View All Result
  • Niger Delta
    • Abia State
    • Akwa Ibom
    • Bayelsa State
    • Cross River
    • Delta
    • Edo
    • Imo
    • Ondo
    • Rivers
  • National News
  • World News
  • Politics
  • Metro
  • Education
  • Business
  • Health
  • Sports
  • Editorial
  • Opinion
  • Entertainment
  • Tech
  • Social Media
  • Niger Delta Today TV

© 2019 NIGER DELTA TODAY - Published By NDT Associates Ltd.