WHAT PATENT LAW MEANS FOR YOU AS A CREATOR
The Big Idea
Imagine spending your entire life developing a novel and unprecedented invention, only to lose the rights and credit for it because someone else patented it before you could.
Yes! This is real. It has happened before, and it won’t stop happening if you refuse to do right by yourself as a creator or inventor.
What is Patent Law, Really?
According to the World Intellectual Property Organization, a patent is an exclusive right granted for an invention. Alternatively, the Black Law’s Dictionary defines a patent as the exclusive right to make, use, or sell an invention for a specified period, granted by the federal government to the investor.
Think of it like an agreement with the government: you let everyone know about your brilliant invention, and they prevent anyone from using, selling, or recreating it without your permission for a limited time.
However, can just anything be patented? No. For an invention to be patentable, 5 primary requirements must be fulfilled:
1. Patentable Subject Matter: Not everything can be patented. For an invention to acquire patentable rights, its subject matter must be patentable. For example, general things like natural creations, laws of nature or abstract ideas cannot be patented.
2. Novelty: The invention must be new and unique. It has to be something that has not been seen before or existed before.
3. Utility: The invention must be useful. It must give some sort of benefit to the intending user, i.e., it must be able to solve an existing problem.
4. Non-obviousness: The invention must be something a layman cannot just think of. Thus, the patentable step or invention must not be so obvious for an average person to figure out.
5. Enablement: When applying for a patent application, there must be a clear and succinct description of the novel invention such that even a person of average understanding in the relevant field would be able to understand the process of the invention.
Patents serve as a protection and defense for inventors and creators under intellectual property law, and in this regard, they’re exhibited in 3 major forms.
1. Utility Patent: These forms of patents are granted for new, unique, and non-obvious processes, machines, compositions, or equipment improvements. E.g., an Air fryer or the buchymix blender
2. Design Patent: This deals more with aesthetics, and it’s made available for the invention of new, original ornamental designs. E.g., phone designs, an outfit design.
3. Plant Patent: This deals with agriculture and is provided to anyone who invents, develops, or reproduces a new, distinct plant variety, seedling, or hybrid. E.g. Tangelo.
How does Patent Law Affect You, as a Creator (or Inventor)?
The major purpose of a patent is to promote innovation while providing incentives to the parties for showcasing their innovation and its contents to the world.
Think Apple, OpenAI, Dell, Samsung, Google Pixel, etc. We are all able to enjoy their unique technologies thanks to patent law. This is because by providing these creators with monopolies over their products for a specific period of time (typically 20 years), it affords them enough time to generate profit from those products.
There are also commercialization avenues. With patents, you can get people to pay to use your inventions through contracts known as licensing agreements. You could also leverage your patents to get access to a competitor’s patents through what are known as cross-licensing agreements. These basically mean that, based on certain agreed terms and conditions, you can use your competitor’s patents to create new, patentable inventions, and at the same time, the competitor has access to yours.
Patents also come in handy in litigation. If someone’s using your invention or even a very similar one without permission, slap them with a lawsuit. Just think of the amount you’ll get paid in damages.
Yet, you might be reading this and wonder, “How then does this apply to me? I am not an inventor nor do I plan to be one.”
It is put it to you that it very much applies to you, even in ways you never thought it could. Imagine no patent system: no inventions, or very little, if any, since creators will be scared of intellectual theft. Trust us, without patents, we may be living in a primitive world. And that is why awareness is so important!
Not only does the patent system enable you to benefit from inventors when they release their inventions to the world, it also serves as simple praise – a “thank you” and “well done” from the world to the inventor.
Common Pitfalls to Avoid
However, patent rights elude many creators and startups due to certain pitfalls they inadvertently fall into. The first of these is much too early public disclosure. What is meant is that startups, perhaps in a bid to secure funding, disclose their inventions before they have secured a patent. As a result, they disclose the innovative ideas, usually to the investors, who may replicate the invention and secure a patent on it before the true inventors. What’s more, the Patents and Designs Act does not protect the first to invent; it protects the first to file. The true inventors then lose the right to patent their invention, effectively losing it to the hands of those who are more informed in this area of IP. Indeed, “my people perish for lack of knowledge.” How can you avoid these? By using NDAs (Non-disclosure Agreements), and similar confidentiality agreements, which ensure that whoever the inventions are shown to is bound to keep them a secret.
The second is the failure to search for preexisting patents on the patent database before filing. The Patents and Designs Act requires that a patent be novel. It is therefore less likely for a patent to be issued where there is a pre-existing patent for a similar invention (what is known as prior art). However, certain administrative mishaps may occur, especially in a country like Nigeria with less rigorous examination procedures, and the patent may be issued. The effect of the preexisting patent is that the later startup would be unable to even use its own patent. This is because the earlier patent would exclude the use or distribution of a similar invention. What can be done? Ensure that you conduct a thorough prior art search at the national patent database before filing for a patent.
Finally, a lack of proper IP awareness makes creators think that having a copyright portfolio offers sufficient commercial protection without the need for patents, especially since copyright doesn’t even require registration. However, copyright only protects the expression and not the idea. The creation of similar inventions expressing the same idea would not be prevented by copyright. On the other hand, patents provide broader, stronger rights by protecting innovative functional concepts, processes, and inventions. Think of it like this: you have an idea to create a duplex. Copyright protects the particular duplex you created. But, patents stop anyone from creating any duplex.
Other startups believe that brand value (from trademarks) is enough to enter the consumer market as they can rely on their brand reputation, according to a recent US study. But, isn’t reputation built on manufacturing good products? Patents ensure that others do not create similar technologies. This knowledge is what separates tech giants from startups that remain startups. Imagine Apple decides to rely solely on its reputation rather than its patents. Competitors like Samsung, Huawei, etc. would just as soon replicate those designs and have it out of business before the next production cycle.
Nigerian vs Global Patent Protection: Why Creators Should Think Global
Talking about tech giants, how can local startups expand beyond national borders? The answer to that lies in an understanding of the interplay between national and international patent regimes.
The Nigerian patent system is similar to the international patent system in several ways. For one, the patentability requirements (novelty, inventive step, and industrial applicability) are quite similar. Both regimes also offer exclusive rights to the patent owner. And, finally, they offer protection for similar terms (twenty years).
However, creators should not limit themselves to national borders. Why? Protection over wider geographical areas, more up-to-date laws, and new markets are just a few of the benefits of going international. That’s not all; the wider coverage means that more people are prevented from using your invention, and that means a wider pool of potential patent licensees. And what’s more, the international coverage attracts a wider pool of investors due to the increased client base it affords the patent owner. Our advice? Think global!
But what does an international patent registration entail? Like charity, it starts at home. Under the Patent Cooperation Treaty (the largest, with over 150 Contracting States), the local patent office is the first port of call. Then comes the international phase, which starts with a PCT application, continues with a search on the international database for prior art, and then the international publication, where the work is publicly disclosed. Once it scales through these mandatory stages, the application would be granted, and all that’s left is to process the PCT application before whatever national, or even regional, patent offices the patent owner has an interest in. It’s cost-efficient, providing you with some protection till you’re able to source enough funding to register in the national offices of your choice.
What now? Here are some quick tips to navigating the patent arena.
Quick Tips for Creators
1. Keep good records: Just like how influencers or video creators document their journey through vlogs and pictures, as a creator or potential innovator, learn to keep a detailed record of your innovation process and this includes the date, time and even location if possible. These mundane things might be what will save your work from being stolen by a competitor in the near future.
2. File early: A maxim of equity states that, “Delay defeats equity (Equity aids the vigilant, not the indolent)”. The law recognizes the first to register, not the first to invent. Brutal? Maybe, but, as the popular slang goes, “No lose guard oooo”.
3. Consult a professional: ChatGPT is not your lawyer. Talk to professionals in the IP field, these are the ones who will enlighten you on the proper steps to take regarding your innovation.
4. Leverage your patent for profit: Don’t hoard, share. Through licensing mechanisms, you give people the chance to utilize your inventions, spread the word to the world, while filling in your pockets as well. If this is not a good bargain, then what is?
5. Collaboration over competition: Partnerships are a very fast way for any growing inventor to thrive fast, so be open to partnerships, investments and collaborations
Final Takeaway: Your Ideas Deserve Protection
So, dear and stellar creators, remain encouraged. Your ideas are golden; with a little help, they would become assets. But, let’s not leave you without that help. Taking courses offered by the World Intellectual Property Organisation (WIPO) will provide you with the basics you need to understand how to protect your inventions. Even better, get a lawyer early to help you document the ideation process, to assist with the registration, and to offer even more tailored advice in getting investor funding without compromising your patent portfolio.
If you’re just starting out in intellectual property, support networks are your backbone. Little communities like your local IP club are your go-to. For students in Obafemi Awolowo University, IPLC OAU stands with its hands wide open to welcome you.
Till we catch you on the next edition, remain stellar. Ciao.
References
[1] Patent and Designs Act, Cap P2 LFN 2004
[3] https://www.tandfonline.com/doi/full/10.1080/13662716.2016.1231607?utm_source=perplexity
[4] Copyright Act, 2022
[5] https://www.txpatentattorney.com/blog/4-most-famous-copyright-cases/?utm_source=perplexity
[6] https://personal.nedbank.co.za/learn/blog/patents-copyright-business.html?utm_source=perplexity
[7] Black’s Law Dictionary
[8] World Intellectual Property Law Organisation.