Question of the Week (1)
We are a tech
company in Nigeria. We have just finished building an app—first of its kind in Africa. Because we have
big plans for this app, we need to protect it. Since the app has an
innovative and intuitive technology, we want patent protection. How do we
go about getting a patent in Nigeria?
company in Nigeria. We have just finished building an app—first of its kind in Africa. Because we have
big plans for this app, we need to protect it. Since the app has an
innovative and intuitive technology, we want patent protection. How do we
go about getting a patent in Nigeria?
Answer
You want to patent your new and intuitive app
in Nigeria.
In Nigeria—and most countries—apps are eligible for copyright
protection only, not patent.
This is because apps are software programs and software programs are
categorized as literary works under the Nigerian Copyright Act. They are
literary works because software programs are written in computer language
(whether source code or object code). The fact of their being written is what
makes them literary, thus their functionalities are immaterial.
The implication of the position above is that your company cannot
successfully apply for patent at the Trademarks, Patents & Designs Registry
in Nigeria. Patents are granted to protect new scientific and
technological inventions only, not software programs. So while your app may
have “innovative and intuitive” capabilities, the Patents and
Designs Act—which applies to inventions in Nigeria—does not
recognize software programs as subjects of patent.
Note that the only
way your app can be eligible for patent in Nigeria is if the app has any
functional or technical features that is new and inventive since patent
protects technical or functional features in a product or process, not just any
product or process.
way your app can be eligible for patent in Nigeria is if the app has any
functional or technical features that is new and inventive since patent
protects technical or functional features in a product or process, not just any
product or process.
But if your app does
not contain this feature, it cannot be patented. At best, it can only be
copyrighted since software is a ‘literary work’ by virtue of being written or
expressed in computer language. (Copyright is not concerned with the functional
or technical feature of your app, if it contains any functional and technical
features.)
not contain this feature, it cannot be patented. At best, it can only be
copyrighted since software is a ‘literary work’ by virtue of being written or
expressed in computer language. (Copyright is not concerned with the functional
or technical feature of your app, if it contains any functional and technical
features.)
Patenting Your Software outside Nigeria
Because you have “big plans” for
your app, you may consider patenting your app in other jurisdictions,
particularly the marketplaces you wish to expand to. In Europe and the United
States for instance, software patents are legally acceptable, but subject to
certain requirements. In Europe, the European Patent Office (EPO)
treat software programs as computer-implemented inventions and requires
that to qualify for patent, the software program or computer-generated
invention must solve a technical problem in a novel and
non-obvious manner. In the US, patent law does not permit
granting software patent that contains abstract ideas.
your app, you may consider patenting your app in other jurisdictions,
particularly the marketplaces you wish to expand to. In Europe and the United
States for instance, software patents are legally acceptable, but subject to
certain requirements. In Europe, the European Patent Office (EPO)
treat software programs as computer-implemented inventions and requires
that to qualify for patent, the software program or computer-generated
invention must solve a technical problem in a novel and
non-obvious manner. In the US, patent law does not permit
granting software patent that contains abstract ideas.
To help your company navigate this typically technical software-patent matter,
consult an IP lawyer or law firm.
consult an IP lawyer or law firm.
Best wishes
IP ABC
Via Infusion Lawyers
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