According to the Section 1 of the Act, there are two criteria an invention must satisfy for it to be patentable. They are;
- It has to be new, results from inventive activity and is capable of industrial application
- An invention is new where an invention has elements making it different from any other one out there.
- It results from inventive activity where the invention was a result of a new process or method or a combination of methods or processes to arrive at the invention, it can be said to result from inventive activity.
- Industrial application simply means that the invention is capable of being manufactured and reproduced for use in any industry.
- It constitutes an improvement on an existing invention and is new, results from inventive activity and is capable of industrial application.
From the above provision, it is clear that for an invention to be given patent protection, it must be new, result from inventive activity and be capable of industrial application, all of which requirements must exists in the invention OR it must constitute an “improvement” on an existing invention, said improvement being new, result from inventive activity and is capable of industrial application.
Are Improvements Patentable?
The provision of section 1(2) of the Act forms the basis of a correct response to this question. According to that subsection, for an improvement of an existing invention to be granted patent protection, one must prove that the new use is new, resulted from trials and combinations of new and old methods, and that it is capable of industrial application. Where all of these requirements cannot be sufficiently proven, the invention may not be granted patent protection.
Discovery V Improvement
It is important to draw a line of distinction between improvement of an existing invention and the discovery of a new use of said invention. Quite literally, an improvement is an enhancement, upgrade or advancement of an existing invention, said enhancement, upgrade or advancement being a new one and resulting from an inventive action, whereas in a discovery, there was no intention to invent, and the finding was purely coincidental.
Are Scientific Discoveries Patentable in Nigeria?
Where for example, after research, it is found that an existing malaria drug can be used to cure COVID 19, can this be patented? Well, Section 1(5) of the Act is clear and answers this question; Principles and discoveries of a scientific nature are not inventions for the purposes of this Act and therefore cannot be granted patent protection.
Are Scientific Discoveries of New Uses Protected in Other Jurisdictions?
In advanced jurisdictions such as the USA and UK, the discovery of a new purpose for an existing invention is patentable. This is called New-use patents in the US, the Patent law goes as far as allowing patents for new uses of old inventions that were not patentable. Although the patentability of this new use would be subject to conditions, it is interesting to see the departure and distinction from the current framework in Nigeria.
It goes without saying that a whole lot needs to be done to the Nigerian Legal framework to enable us match the pace of these jurisdictions and be able to protect the rights of persons in all the advancements still to come.