Before a patent is granted for an invention, three basic conditions are considered. That means that for an invention to be patentable, it must be new, involve in inventive activity and be capable of industrial application. Section 1(1)(a)-(b) of the Patent and Design Act[1] provides for that. PATENTABILITY OF INVENTIONS


The concepts of “newness”, “inventive activity” and “industrial application” as they relate to patentable inventions are expatriated upon in subsections (2) and (3). These presuppose that an invention “does not form part of the state of the art” paragraph (a) of subsection (2). In other words, an invention is deemed to be new or novel if it was not known or available to others knowledgeable in that field at the date of the application for a patent. There is an “inventive activity” when the invention does not obviously follow from any prior state of the art (paragraph (b) of subsection (2). And an invention is regarded as “capable of industrial application” if it can be manufactured or used in any kind of industry, including agriculture (paragraph (c) of subsection (2). PATENTABILITY OF INVENTIONS




This provision brings us to the problem of definition of the word ‘invention’. Under the Nigeria law, there is no definition of an “invention”. However, some persons defined an invention as “the act of devising or contriving as a result of purpose or forethought, an original contrivance or the construction of that which has never existed before”. The invention has also been defined “as a step forward in an art”. These definitions relate more to novelty rather than to an invention. The further definition states that “invention means the act of bringing ideas or object together in a novel way to create something that did not exist before”. Hornby[2] defined as “the ability to have new and interesting ideas”. Bhatia[3] says that an invention “is a new solution to a technical problem”. Indeed, as Rinfret J. said in the Canadian case of Crossley Radio Corporation vs. Canadian General Electric Company Ltd[4]. PATENTABILITY OF INVENTIONS


It would be ideal to attempt a comprehensive definition. In certain cases, the decision must necessarily be the result of nicety. It is a question of fact and degree depending upon practical considerations to a large extent rather than upon legal interpretation”. The researcher sees “invention” as advancement on product or process which adds value to the existing one. PATENTABILITY OF INVENTIONS

Patentable inventions are inventions in respect of which the law will grant a patent. All patents embody inventions but not all inventions are patentable. To qualify for patentability an invention must comply with the requirements of section of the Patents and Designs Act 1970. There is much uniqueness that a patent administrative center will look at to establish whether the invention is patentable. By international agreement, patents are available for any inventions, whether process or product, in all areas of technology. An invention may be a product, something which is produced by a manufacturer, or it may be a process, a method of making or doing something. A chemical compound, machine and so on can be patented. Processes for developing or making things may be patented.

On the other hand, there are many things that cannot be patented and are usually excluded from the scope of patentability. Human genes, for instance, cannot be patented. PATENTABILITY OF INVENTIONS


Things that before now exist in nature, with exceedingly few exceptions, cannot and will never be patented. A lasting motion machine, which goes in opposition to the laws of nature, cannot be patented except someone can show it working. Subsequently, of course, the old rules are set aside and something novel is created. Some inventions may be excluded from the scope of patentability for public order or morality grounds, for example, biotechnological instruments, generic animals design, human tissue, etc. The developments occurring in a given area of technology that is patentable may be great developments, like the invention of penicillin, or very small improvements, such as a new-fangled lever on a piece of equipment that enables it to work just a little faster. PATENTABILITY OF INVENTIONS


Generally speaking, an invention is novel or new if it is not known or made available of others. Under section 1(2)(a) and subsection (3) an invention is new or novel if it does not relate to the art or field of knowledge which had been made available to others anywhere before the date of the filing of an application for a patent or in the case of a foreign invention, before the date on which the foreign priority date is validly claimed. PATENTABILITY OF INVENTIONS


As noted earlier, there are basically three criteria for patentability of the invention. The first of these criteria is that it has to be new (novel), meaning that the invention must never have been made before, carried out before or used before. Secondly, it must have been an inventive activity. In other words, it must represent an original improvement in relation to the state of the art before it will be considered for a patent. The third decisive factor is that it requires being industrially valid. It has to be susceptible to use in some way. This is a very broad criterion. Almost anything can be used, even if it is in the research stage, but that does not apply to perpetual motion. PATENTABILITY OF INVENTIONS






[1] Cap P2, Laws of the Federation of Nigeria, 2004

[2] Hornby, A.S. (2007) Oxford Dictionary, 7th edition, Oxford University Press, p.786

[3] Bhatia, P.G. et al (2010)An Introductory Discourse on the Concept of Patents for Nigerian Researchers

[4] (1936) D.L.R. 508

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