Sometime in June this year, it was reported that a Federal High Court judge in Abuja had purported to invalidate the entire 2011 general elections as a result of a successful patent infringement suit against the Independent National Electoral Council and a few other parties. The plaintiff contended that its patent to transparent and collapsible ballot boxes was infringed by INEC, as INEC did not obtain its permission to use said ballot boxes in the conduct of the 2011 elections (see a concise background report here).
very little fanfare followed the judgement, due possibly to the incredulousness of it all. First of all, there are all the jurisdictional issues. The Federal High Court, for instance, has no jurisdiction over whether or not a person has been validly elected President or Vice-President (section 239, 1999 Constitution). Also, would the ruling take precedence over the concluded and ongoing election petition matters all over the country?
There is also the issue of the appropriateness of the judgement in the context of what the Patent and Designs Act stipulates as the consequences for infringement. First of all, it is unclear whether the conduct of elections would fall under “commercial purposes” (section 6 (3) (a)) so as to constitute infringement. Secondly, the remedies for infringement under t
he law (section 25 (2)) are injunction (i.e. court bans INEC from using patented invention), damages (i.e. compensation to holder of patent) and accounts (i.e. INEC handing over all profits it made from the unlawful use or exploitation of the patented item). Why, therefore, would an order be made invalidating the entire elections as a result of a purported infringement?
The greatest concern, however, should be how a transparent ballot box can be deemed a patentable invention (see here for detailed analysis of patentability in Nigeria). A ballot box is a box with a slit at the top for pushing ballots in. A transparent ballot box is a box that is transparent and on the top of which a slit has been made for inserting ballots. What is the novelty in a transparent ballot box? Where was the inventive process?
Section 1 of the Patents and Designs Act is extremely clear and I reproduce it in full below:
1. (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.
(2) For the purposes of subsection (1) of this section-
(a) an invention is new if it does not form part of the state of the art,
(b) an invention results from inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial result it produces; and
(c) an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.
It will surprise most readers that the extent of the scrutiny of patent claims by the Patents Registry is as to mere formal validity (i.e. they only check that the 6 or 7 documents required to be deposited have been deposited). They do not examine the novelty of the claims in the application and there is no system for detecting whether or not an application potentially infringes an earlier grant of patent. So, yes, I could walk into the Patents and Designs registry tomorrow and be granted patents for the iPhone and the iPad and their constituent parts and processes. In fact, it has been reported here that “the registrar of patent went ahead to issue the same patents to other companies without first invalidating the right of [the Plaintiff in the suit against INEC]”.
The picture isn’t too great on the service supply side either. In “developed” countries, most patent attorneys were engineers, pharmacists, physicists, etc, before studying law. As far as I’m aware, Nigeria does not have any patent attorneys – we are largely agents; filing the claims that foreign patent attorneys have drawn up.
Apparently, INEC has issued a statement declaring that it no longer uses the “infringing” boxes but it would have been very interesting to see where appealing this Federal High Court ruling would have taken the matter.