On Tuesday 28 January 2014, the court in the case of Bedding Holding Limited v. INEC & 5 others found INEC guilty of infringing the patent rights to a process belonging to Bedding Holding Limited (BHL). The patent in question relates to the process and application of Direct Data Capture (DDC) machines for the compilation and collection of various biometric information and is covered by a patent granted under the Patent and Designs Act.
The background facts to this case are very simple and straightforward. BHL sued INEC (and the other parties) for infringing its patented process by awarding the contract for the importation of these DDC machines. The court found in favour of BHL. The court in arriving at its decision held that that having gone through the totality of evidence adduced before it by both BHL and INEC, it was satisfied that INEC, violated a subsisting patent right over the process, application and use of DDC machines for voters’ registration. Consequently, the court ordered INEC, and the other defendants to pay BHL the sum of N17.25 billion as compensation for infringing on its valid and subsisting patent rights
In Nigeria, the principal law relating to the grant of patents is the Patents and Designs Act (the Act). For an invention (or as in this case a process) to be protected by patent (or capable of patentability) under the Act, it must be (1) new, (2) result from an inventive activity and (3) capable of industrial application (or if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application). In relation to patentability; the Act further provides that an invention is new if it does not form part of the “state of the art”; 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 an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture. The Act defines “state of the art” to mean everything concerning that art or field of knowledge which has been made available to the public anywhere and at any time whatever (by means of a written or oral description, by use or in any other way) before the date of the filing of the patent application relating to the invention.
In plain English, an invention will be patented if it is new and has never been done before in a way that was available to the public. An invention involves an inventive activity if it reflects some amount of inventive ingenuity; in other words, it must not be obvious to a professional skilled in the technology of the invention. An invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture. All these requirements are cumulative requirements that must be satisfied before the invention will be patented. In the case where a patent has already been granted for the invention, the patent can be cancelled if it is established before the court that any of these requirements has not been met. Thus the relevant questions in this particular case is whether the process in question been done before as at the time the patent was applied for, does the process involve an inventive activity and is the process capable of industrial application. The Judge in finding INEC and the other defendants guilty of infringing the patent right to the process appears to have concluded that the process in fact meets all the requirements for patentability under the Act.
As I have not read the Judge’s decision in this case, it would be absurd for me to comment on the basis of the Judge’s conclusion. However, I am left to wonder and ask, did the Judge give a reasoned explanation of how the patented process satisfied each of the cumulative requirement of patentability, did the Judge give a broad definition of “anywhere” as used in the meaning of “state of the art” as not limiting to only Nigeria, was it established to the satisfaction of the Judge that the infringing DDC machines can be obtained directly by means of the patented process, and did the Judge interpret the claims contained in the patented process in relation to the alleged acts of infringement.
If any of these question is answered in the negative, then one needs to be concerned for the grave implications this judgment portends for Nigeria’s tech ecosystem as it will give rise to (a new category of ) patent trolls (Wikipedia defines a patent troll, also called a patent assertion entity (PAE), as a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in economic rent-seeking) who will be tempted to reap where they did not sow.
The effect of this Judgement on Nigeria’s tech ecosystem would be to create a powerful incentive that empowers patent trolls to apply to patent just about anything patentable under the sun. This is especially so because the Act does not require patent examiners to examine a patent application as to whether it is in fact patentable, thus giving patent trolls the ability to “game” the patent system in Nigeria. For instance, nothing in the Act prevents patent trolls from patenting technologies (note not “inventions” which indicates that the patent applicant is in fact the inventor) such as for streaming music, injecting video adds into a live stream, auto-station tuning, conducting anonymous mobile payment, for controlling Unmanned Aerial Vehicles (that is if the patent troll is very ambitious and is willing to go up against the Nigerian Air Force), for preventing the excessive consumption of bandwidth and many others in order to extort huge licensing fees from legitimate users of these technologies in Nigeria. After all, the Act presumes that the first to file a patent is the rightful person to claim to enforce such patent.
Such a scenario occurring in Nigeria will ultimately retard innovation and, disrupt the ecosystem in all its ramifications and I am constrained to ask again if this is what the Act could have intended. One is left to wonder whether the Judgement of this court requires further scrutiny by a higher court or it is the Act that is in need of urgent reform (or both), but the fact remains that I am afraid for Nigeria’s tech ecosystem, very very afraid.
