Area: Intellectual Property Law
A patent priority is said to take effect where a patentee who files a patent application in a foreign country which is a signatory of the Paris Cooperation Treaty has the right to within 12 months file an identical or same application in Nigeria and subsequently claims priority based on the first application in the foreign country.
The Patent and Designs Act 1971 regulates and governs all matters relating to patents and patent priority application in Nigeria and the Trademark, Patents, and Design Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment in Nigeria is the appropriate agency in charge of patent applications in Nigeria.
The first application becomes the basis of the right of priority and the date of filing of the first application becomes the priority date and where this arises, the later application is regarded as been filed at the same time as the first application.
Section 3(4) of the Patents and Designs Act provides that in regards to a patent application, "an applicant who seeks to avail himself of a foreign patent priority in respect to an earlier application made in a country outside Nigeria is required to append his signature to his application in a written declaration and provide the details below;
- The date and the number of the earlier application;
- The country in which such application was made and;
- The name of the person who made the application".
The above provision of law provides the basis for the requirements of PCT application in Nigeria. Also, the applicant is required to furnish to the Register of the Trademark, Patent, and Designs Registry a copy of the earlier application, which has been certified correct by the appropriate Industrial Property Office (or its equivalent) of the foreign convention country where the earlier application was made, not more than three (3) months after filing the application in Nigeria.
Furthermore, in the event of issuing a grant of a patent license where a foreign priority is claimed, the patent license will contain the indication of the fact that there exist a foreign application and the number and date of the application on which the claim is based and the name of the country where it was made, as provided by Section 5(1) of the Act.
In conclusion, an applicant for PCT application in Nigeria may be made by a patent attorney on behalf of the foreign applicant or by the applicant himself. Registration of patent in Nigeria takes between one to three months to be concluded.
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