CHAPTER TWO

LITERATURE REVIEW

2.1 Introduction

This chapter focuses on what learned scholars and authorities have said or

written in respect to different aspects of the study at hand. This was achieved

through the review of literature converted related to the study.

2.2 Conceptual Review

2.2.1 Concept of Patent

The word "Patent" denotes a grant of letters acknowledging a right or monopoly

in respect of an invention. When a Patent is granted, the "Letters Patent" are

delivered to the patentee, who is entered on the Register of Patent as the

proprietor or grantee1.

The Patents and Designs Act2 , which is the governing legislation on the patent

and industrial design does not proffer a definition of Patents. Section 32 of the

Patents and Designs Act merely defines a patent application as an application

for the grant of a patent.

A Patent for an invention does not confer upon a patentee any right to

manufacture which he does not already hold. According to Richard, "Letters

1
K.M WAZIRI (2011) The Legal Regime of Patents and Designs Law and Its Effects On National Development
2
Cap.P2, Laws of the Federation of Nigeria, 2004
 Patent" confer is the right to exclude others from the commercial exploitation of

a particular invention being a temporary government-granted monopoly right on

something made by an inventor3 .

However, Oyewunmi defined ‘patent’ as legal rights that confer on inventors of

a new and useful products and processes right to exclude others from the

commercial exploitation of the invention.4 It may also be defined as a form of

intellectual property that gives its owner the legal right to exclude others from

making, using, selling and importing an invention for a limited period of years,

in exchange for publishing an enabling public disclosure of the invention.

The objects of the Patent system are to encourage invention and innovation and

the growth of new industries. In doing so, it gives the consumer new choices

and thus improves his standard of life, and creates new outlets for human

activity5

The Patent and Design Laws have two basic functions;

a) The economic function. And

b) The legal function.

a) The economic function is to promote technical progress and the growth of

industry by stimulating research and invention.

3
Oyewunmi, , Terrell on the Law of Patents, Sweet & Maxwell,17th Ed. P. 1
4
Nigerian Law of Intellectual Property, University of Lagos Press and Bookshop Ltd, p. 141.
5
Meinhardt, P. (1971), Inventions, Patents & trade marks. Gower Press, Lond. P. 19
 b) The legal function on the other hand consists of a grant to the inventor or his

successor, a monopoly to exploit the invention or idea and to hold off

competition for a number of years6.

2.2.2 Concept of Industrial Designs

Wherever the word design is used, it should be understood that reference is

made to industrial designs. However, there is no unanimity in the definition of

what an industrial design is. The lack of unanimity is due partly to the type of

items or things that different jurisdictions consider as industrial designs 7. Secondly,

the nature of the rights and protection provided in different countries create

differences even within the international legal framework on industrial designs.

Similarly, industrial designs gain protection by registration which is made

by a statutory creator, true creator, an employer in respect to designs created by his

employee, or one who commissions a work through which the design emanated,

(Patents and Designs Act, 2004). The rights conferred on the designer by virtue of

the registration are the exclusive rights to reproduce the designs in production;

import, sell and utilise commercially the product with the industrial design as well

as grant licenses to person for the exploitation of the registered industrial design.

Ibid. P.19.
6

7
O Afori, Reconceptualizing Property in Designs [2007-2008] (25) (3) Cardozo Arts &
Entertainment; 1105-1122.
 The Patents and Designs Act8 does not offer much to assist as it does not

categorically define what Designs are rather it describes the nature of industrial

designs. The relevant section of the Act states:

any combination of lines or colours or any three-dimensional

form whether or not associated with colours, is an industrial
design, if it is intended by the creator to be used as a model or
pattern to be multiplied by industrial process and is not
intended solely to obtain a technical result.9

Agaba,10further argued that the creative abilities of persons with disabilities

in intellectual property innovations should not be overlooked as they too are

important constituents of society. Furthermore, section 3211 of the same Act adds to

the limited definition by stating that a design means an industrial design. This lack

of elaborate definition limits the scope of the Patent and Designs Act to designs

that are used or applied in industrial or production processes only rather than to

individual handicrafts which are protected under artistic works covered by

copyright law. It is to be noted, however, that where at the time of their creation,

such works are intended to be models or patterns to be multiplied through an

8
(Cap. P2) Laws of the Federation of Nigeria, 2004
9
Section 12
10
I.A. Agaba, (2013). “Copyright Law: The Right of the Owner versus the Freedom of the User to copy”,
Ahmadu Bello University Journal of Commercial Law.Ahmadu Bello University Press Ltd, Zaria,
Nigeria, pp. 177
11
Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria, 2004
industrial process of any kind, then such works are not to be considered for

protection under copyright but under industrial designs.12

The difference in defining an industrial design is also reflected in the

different forms of protection in each jurisdiction. While the United States (US)

Design Patent is based on Utility Patent Law, the European Union (EU) and

Nigeria have introduced a freestanding sui generis form of protection, the

Community Design and Patents and Design protection respectively. The difficulty

in defining Industrial Design came to light in the Nigerian case of SERG Aims

Aluminum Products Ltd. v. Stanley Akagba&Ors 13 wherein the Defendant

contended that ranges and dimensions were not protected under the Patents and

Designs Act and that they were free materials to which the Plaintiff could not lay

claim as the creator. Egbo-Egbo, J. (as he then was) held in that case as follows:

Unfortunately, I do not subscribe to such general view. It is

obvious, ranges and dimensions make up what we call designs.
If these designs have been registered in Exhibits B-B1, it is
legally wrong for the Defendant to copy them. It is theinvention
of the author, in this case the Plaintiff, which the law seeks to
protect when such inventions are registered. To copy them into
its almanac and advertise it is a violation of the Plaintiff’s
rights.
2.2.3 Historical Development of Designs’ Law in Nigeria

12
Section 1(3) of the Copyright Act Cap.C28 Laws of the Federation of Nigeria yields grounds
for industrial designs and makes such works non eligible for copyright protection if the work is
intended by the author to be used as a model or pattern to be multiplied by an industrial process.
The distinction was clearly demonstrated in the decision n the case of F.O. Ajibowu& Co. Ltd. V.
Western Textile Mills Ltd. (1976) 7SC 97.
13
(1994) FHCLR 188
The law of designs has a reasonably long history dating back to the latter part of

the 18th century. In 1778 the first Designs Act protecting designs was passed in

the United Kingdom. The act gave two months to designs applied for linens,

cotton, calicoes, and muslins. The origin of design law sprang from this14.

Several other Acts were passed over the next few years and eventually these were

repealed and replaced by Patents Designs and Trademarks Act 1883. A previous

distinction between ornamental and useful designs was removed and the duration

of protection was set at five Years. Later the Patents and Designs Act 1907

increased the maximum of protection to 15 years.

With the development of artistic copyright came problems of duplication of rights

and the Copyright Act 1911, followed by Copyright Act 1956 which attempted to

remove the overlap between a registrable design and artistic copyright. This was

modified by the Designs Copyright Act 1968 which permitted dual protection to a

design both as registered designs and under artistic copyright 15. If a design is

aesthetic it was subject to some other requirements registrable under the

Registered Designs Act 1949 and could be protected for 15 years. This has now

been extended to 25 years.

14
Cornish W. &Liewelyn D. (2007) Trademarks and allied Rights, Sweet & Maxwell, London. P 102

15
Ibid. p. 103.
If the design was functional, it was not registrable but could attract artistic

copyright through it drawings. This may last for the remainder of life of the

author plus 50 years16. The law on designs was radically altered by the

Copyrights, Designs and Patents Act 1988 both in terms of changes to the

registered designs and the new unregistered designs right. The law prior to the

coming into force of this Act remained relevant for designs which were created or

recorded before 1st August 1989 in the U.K. In Nigeria, the Patents and Designed

Act was introduced in 196817. Subsequently it was passed in 1970 to repeal the

United Kingdom (Protection) Act. Therefore, the current legislation which

provides for the original registration and other matters of industrial design in

Nigeria is the Patents and Designs Act, Cap. P2, Laws of the Federation of

Nigeria, 2004.

2.2Empirical review of Related Literature

Alicebenar, Orji, & Ifeanyichkukwu in their study asserted that patents are grants

protecting new inventions and Industrial Designs are those elements attributed to

industrial or commercial products to enhance their appearance and attractiveness.

As instruments of economic development, the law affords protection to persons

whose efforts and energy are exerted in this direction. The primary concern of
16
Ibid. p. 105.
17
Patents and Designs Act cap 68 LFN 1968
applicable laws is to protect inventions and designs that are new or constitute a

fundamental improvement of existing inventions and designs. The Nigerian

legislation governing patents and designs is the Patent and Design Act, Cap. P20,

LPN, 2004. Despite the protection against infringement enshrined in the Act, there

are obvious challenges to the system which hinders an effective accomplishment of

the aim of the law. This paper proffers an insight into the Nigerian legal regime of

patents and designs, identifies existing setbacks and advances possible solutions.

Gilbert18 in his article examined the rights and protection of owners or

proprietors of designs under Nigerian and international law. It explored available

legal provisions for the protection of such rights and the remedies available to

statutory creators, true owners or licensees in cases where such rights are infringed.

The article explained and distinguished industrial designs from other intellectual

property rights or works of artistic nature and the implication that comes with such

contrast or variation. The article discussed the concept of ownership with emphasis

on industrial design and the procedures of registration, duration and the nature of

the rights and protections conferred on the owner or proprietor of an industrial

design. Motivated to probe the ineffective utilization, enjoyment and protection of

industrial designs in Nigeria, the article employed the doctrinal methodology of

research otherwise called armchair research in undertaking the study. It found that

lack of awareness of the economic and technological benefits derived from designs
18
T. Gilber (2015) Protecting the Rights of Proprietors or of Industrial Designs in Nigeria: An Appraisal
as well as the conjoined nature of the Patents and Designs Act Cap. P2 Laws of the

Federation of Nigeria 2004 created problems for effective enjoyment of the rights

and protections provided by law. It recommended amendments to the Nigeria

legislation to cover other categories of users and creators of designs such as

persons with disabilities under the Discrimination against Persons with Disabilities

(Prohibition) Act, 2018 on how best the rights of owners and proprietors of designs

may be protected.

Waziri(2015) in his study opined that there is need for developing nations to

focus on the dynamic functionality of national systems of innovations and

technology and develop a measureable, sustainable and beneficial Intellectual

Property Protection. He further stated proper development of Intellectual property

law to any Nation is a positive path to national development and that patent system

has the fastest development indices in Intellectual Property Law, all over the

world, especially in developed countries and Nigeria as a signatory to the TRIPs

agreement need to have a responsive patent and design law and a clear vision as to

how to manifest these laws into national development. In his paper tends to look at

the regime of patent and designs law in Nigeria, its international dimensions, and

ofcourse the consequent impact to national development.

Suleiman (2020) in her dissertation examine the legal regime protection of

patent and Industrial Designs in Nigeria with the view to identifying the
challenges hindering the effective protection of the subject matter. The global

community has benefited from various forms of intellectual property which

have not only ensured economic growth and development but have also led to

improved standard of living, employment creation and high generation of

revenue for the government. Patents and industrial designs are forms of

intellectual property which have been exploited by countries of the world to

achieve economic and social boost and to solve problems in various sector of

national life such as defence, education, and health. As a result of the

importance of patent and industrial design, countries have long been setting up

appropriate systems and Legal framework to achieve this. Nigeria as a

developing country is not left out in this global efforts. Thus, this dissertation

through doctrinal and empirical approach of research carried out an in-depth

analysis of patent and industrial design in Nigeria with special focus on the

legal and institutional frameworks for the protection of patents and industrial

designs in Nigeria. The origin of patent and industrial design rights in Nigeria

was traced, the applicable laws analysed, and remedies, defences,

administration, jurisdiction and the challenges identified, findings which

include that law regulating patent and industrial designs in Nigeria are

inadequate. Consequent upon the foregoing, the research found that there is

only one Patents and Industrial Designs registry in the whole of Nigeria which
is situated in Abuja. Also, there is low level of public awareness on the

generality of patent and industrial designs in Nigeria. Amongst others, this

dissertation recommends that there is an exigent need to review the existing

legal framework on the subject matter increasing the level of awareness and

establishing more patent and industrial designs institutions in Nigeria.