Patent Infringement and Remedies Under Nigerian Law

In 2007, a Federal High Court in Lagos found that two Nigerian companies, Tyonex Nigeria Limited and Ebamic Pharmacy Limited, had infringed Pfizer’s registered Nigerian patent by importing and selling a pharmaceutical product called “Amlovas,” which contained Amlodipine Besylate, the active compound that Pfizer had patented in Nigeria for its cardiovascular drug Norvasc. The court granted an injunction and awarded damages in Pfizer’s favour. It took five years from the filing of the suit to the judgment. In a separate matter, a patent infringement dispute between Dr. C.J.A. Uwemedimo and Mobil Producing Nigeria Unlimited began in the early 2000s and lasted for more than a decade without resolution on the merits.

These two cases capture the dual reality of patent infringement litigation in Nigeria: when it succeeds, the courts are willing to make meaningful orders, including injunctions and damages; but the process is slow, technically demanding, and expensive. Understanding how infringement is established, what the defendant can raise in response, and what remedies a successful patentee can obtain is the analytical core of this article.

1. The Exclusive Rights Conferred by a Patent: Section 6

Section 6 of the Patents and Designs Act Cap P2 LFN 2004 defines the substance of the patent monopoly by specifying the acts that only the patentee, their assignee, or a licensed user may do.¹

Where a patent has been granted in respect of a product, the patentee has the exclusive right to prevent any other person from making, importing, selling, or using the patented product, or stocking it for the purpose of sale or use.

Where a patent has been granted in respect of a process, the patentee has the exclusive right to prevent any other person from applying the patented process, or from doing, in respect of a product obtained directly by means of the patented process, any of the acts listed for a product patent above.²

The process patent provision has an important implication. A person who manufactures a product using a patented process without the patentee’s consent infringes even if the product itself is not separately patented. And a person who imports or sells a product that was manufactured abroad using a patented process infringes the Nigerian process patent, because importing a product obtained directly by the patented process falls within the exclusive rights.

The scope of the protection conferred by a patent is determined by the terms of the claims, and the description and any plans and drawings included in the patent shall be used to interpret the claims.³ This claims-centric approach means that patent infringement analysis is fundamentally a two-step exercise: first, interpret the scope of the patent claim as a matter of law; then compare the defendant’s product or process against that interpreted claim as a matter of fact.

2. The Claim Interpretation Step: Reading Patent Claims Against the Description

In determining an allegation of infringement, the Federal High Court is required to interpret the patent in question and determine the scope of protection conferred in terms of its claims and specifications. In doing so, the description and any plans and drawings included in the patent are used to interpret the claims.⁴

Claim interpretation is the foundational analytical step that makes patent litigation technically distinct from other IP infringement disputes. A patent claim is a precisely worded legal document that defines the boundary of the patentee’s monopoly. The words in the claim carry technical meaning that must be understood in the context of the specification as a whole, in light of the state of the art at the filing date, and from the perspective of a person skilled in the relevant technical field.

Nigerian courts have not developed a fully articulated doctrine of claim construction equivalent to the detailed jurisprudence that exists in the United States or the United Kingdom. The PDA’s instruction that the description shall be used to interpret the claims is the primary statutory guidance. In practice, Nigerian courts in patent cases rely heavily on expert evidence from persons skilled in the relevant technical field to assist with the technical meaning of claim language and the scope of protection.

Once the claim is interpreted, the question is whether the defendant’s product or process falls within that interpreted scope. A defendant who has made a product or used a process that falls literally within every element of a valid patent claim is a primary infringer. A defendant who argues that their product or process differs from the patented claim in some respect raises the interpretive question of whether that difference takes their conduct outside the monopoly or merely represents an equivalent means of achieving the same result.

The doctrine of equivalents, widely recognised in patent law globally, holds that a product or process that does not fall literally within a claim may nonetheless infringe if it performs substantially the same function in substantially the same way to achieve substantially the same result as the claimed invention. Nigerian courts have not yet articulated a clear doctrine of equivalents in a reported decision. The PDA’s instruction to use the description to interpret the claims provides some textual support for a purposive construction approach that reaches equivalents, but the analytical framework has not been developed with the precision that comparable jurisdictions have achieved.

3. Section 25: The Infringement Provision

Section 25 of the Patents and Designs Act provides that where a person other than the patentee, an industrial design owner, or their respective assignees or privies does, or causes to be done, any act relating to the use of a patent or design, this constitutes an infringement of the relevant right.⁵

Depending on the nature of the patent, infringement may occur where a person or business makes, uses, imports, sells, or offers for sale a patented product without the consent of the patent owner. In the case of a patented process, infringement may also arise where the process is used without permission, or where a product obtained directly from that process is commercially exploited without authorisation.

Section 25(2) of the Act confers a right on the owner of a patent whose rights have been infringed to bring an action before the court for their enforcement.⁶

The “causes to be done” formulation in section 25 extends liability beyond the primary actor to those who procure or authorise the infringing acts, even where they do not directly make, use, or sell the patented product or process themselves. A company director who instructs employees to manufacture a patented product, or a distributor who knowingly supplies a manufacturer with materials for making infringing products, may be liable as a party who “causes” the infringing acts.

4. The Patent Infringement Proceedings: Procedure and Standing

Section 26 of the PDA vests jurisdiction in the Federal High Court for all proceedings under the Act.⁷ The provisions of the Trade Marks Act applicable to legal proceedings apply with necessary modifications to proceedings under the PDA. Section 251(1)(f) of the 1999 Constitution independently confirms the Federal High Court’s exclusive jurisdiction over patent matters.

Standing to bring infringement proceedings belongs to the patentee, the patentee’s assignee, or an exclusive licensee of the rights alleged to be infringed.⁸ A non-exclusive licensee does not have independent standing. Where the exclusive licensee brings proceedings without the patentee, the court may require the patentee to be joined as a party to ensure that any damages awarded are not duplicated in separate proceedings by the patentee against the same defendant.

An alleged infringer or any person can approach the Federal High Court seeking a declaration that the invention does not infringe the patent because the acts complained of do not amount to infringement in law.⁹ This declaratory action is a defensive tool: a person who has received a cease-and-desist letter from a patentee, or who is contemplating commercial activities that may engage a registered patent, can apply to the court proactively for a declaration of non-infringement without waiting for the patentee to sue them.

5. Defences to Patent Infringement

The PDA and its associated jurisprudence recognise several specific defences to an infringement claim.

Invalidity of the patent. The defendant may raise the defence that the patent allegedly infringed is itself invalid and ought not to have been granted. This may be because the invention is not patentable in Nigeria, or because the patent has already been granted in Nigeria for the same invention to an earlier applicant or earlier foreign-priority claimant.¹⁰ Because the Nigerian deposit system grants patents without substantive examination, invalidity is frequently raised as a defence in infringement proceedings. The defendant who successfully establishes that the patent was not new, did not result from inventive activity, or was not capable of industrial application at the filing date defeats the infringement claim entirely, because an invalid patent confers no enforceable rights.

The Beijing Cotec/Churchbells Pharmaceuticals v. Green Life Pharmaceuticals case illustrates this dynamic with particular clarity. The Federal High Court initially granted an ex-parte order restraining Green Life from making, importing, or selling antimalarial drugs alleged to infringe the plaintiff’s patent. The defendant then produced countering evidence and the court vacated the ex-parte order, following an examination of whether the patented technology was actually new.¹¹ The case demonstrates a recurring feature of Nigerian patent litigation: courts must often resolve both validity and infringement in the same proceedings, because the Registry’s failure to examine for novelty means that the first real substantive assessment of the patent’s validity occurs in court.

Experimental or non-commercial use. A party who can demonstrate that the acts done are for experimental or non-commercial purposes may escape liability in an action for infringement.¹² This defence protects private, non-commercial use of a patented invention and genuine experimental research aimed at understanding or improving the invention. It does not protect commercially motivated research, manufacturing for sale, or any activity connected to the trade in the patented product. The experimental use defence is most relevant in the pharmaceutical and biotechnology context, where research-stage activities often involve working with patented compounds before any commercial activity begins.

Prior use. A person who was already using the patented invention in Nigeria, privately and continuously, before the date of the patent application is entitled to continue that prior use without infringing the patent, even after the patent is granted.¹³ The prior user cannot, however, expand the scope of their use beyond what they were already doing: the prior use right is personal, cannot be assigned, and is strictly limited to the scale and nature of the use that predated the application.

Licensed use. A patentee cannot successfully claim infringement against a person who holds a valid licence, whether express or implied, whether granted by the patentee directly, by the Federal High Court through a compulsory licence, or by the Minister of Trade, Industry and Investment.¹⁴ The scope of the licence determines whether the defendant’s use is within its coverage: a licensee who exceeds the terms of their licence by manufacturing in unauthorised territories, selling beyond authorised channels, or using the patent for unauthorised products commits infringement of the unlicensed use.

Expired or lapsed patent. It is also a complete defence to a patent infringement suit that the patent has expired or lapsed.¹⁵ A patent that has reached the end of its twenty-year term, or that has lapsed through non-payment of annual fees and was not revived within the grace period, is no longer in force. Acts done after expiry or lapse are not infringing, and the invention is in the public domain.

Acts done before the patent was granted. Acts done before the patent was granted cannot constitute infringement, because the patent right does not exist until the Registrar has issued the grant.¹⁶ However, since registration takes effect retrospectively from the filing date under the PDA, this defence is narrow: it covers only the period before the application itself was filed, not the period between filing and grant.

6. The Parallel Importation Question

One defence that has not been definitively resolved in Nigerian patent law is the parallel importation of genuine patented goods: goods that were first put on the market by the patentee or with the patentee’s consent in another country, and then imported into Nigeria without a specific Nigerian distribution licence.

The PDA’s exclusive right in section 6 includes the right to prevent importation of the patented product. Taken literally, this suggests that any importation without the patentee’s specific Nigerian consent constitutes infringement, even where the goods are genuine and were first sold by the patentee themselves in their country of origin. This would support a national exhaustion doctrine: the patentee’s right to control importation is exhausted only by a first sale in Nigeria, not by a first sale anywhere in the world.

TRIPS Article 6 expressly provides that for the purposes of dispute settlement under TRIPS, nothing in the Agreement shall be used to address the issue of exhaustion of intellectual property rights. This means TRIPS leaves the choice between national, regional, and international exhaustion to each member state. Whether Nigerian patent law currently adopts a national or international exhaustion approach has not been authoritatively determined by a reported Nigerian court decision, and the issue remains analytically open for students and practitioners alike.

7. Remedies: Section 9

Section 9 of the PDA provides that in an action for infringement of a patent, all such reliefs by way of damages, injunctions, or otherwise shall be available to the claimant as is available in any corresponding proceedings in respect of the infringement of other proprietary rights.¹⁷ The open-ended “or otherwise” language incorporates the full range of equitable remedies by reference, in a manner closely analogous to the equivalent provision in the Trade Marks Act.

Injunctions. The most immediately valuable remedy in patent infringement is typically the injunction stopping the infringing acts. A preliminary injunction restrains an accused infringer while a suit is pending to prevent irreparable injury to the patent owner.¹⁸ The test follows the American Cyanamid principles applied across Nigerian IP law: serious question to be tried, balance of convenience favouring restraint, and inadequacy of damages as a sole remedy. In the pharmaceutical context, where infringing generic drugs may capture market share rapidly, the interlocutory injunction is often the most commercially important single step in the litigation.

A patentee may be entitled to relief by way of damages, injunction (including an Anton Piller order), rendering of account, and such other relief as the court may deem necessary in the circumstances.¹⁹ The Anton Piller order, which authorises search and seizure of infringing goods and manufacturing equipment without advance notice to the defendant, is available in patent cases as in trademark cases. Where the defendant is manufacturing infringing products at scale, a without-notice search order allows the patentee’s representatives to secure evidence and identify the scope of the infringing operation before the defendant can conceal it.

Damages. The compensatory principle governs damages: the court aims to restore the patentee to the financial position they would have been in if the infringement had not occurred. Damages in a product patent case are typically assessed by reference to the lost profits the patentee would have earned on the sales diverted to the defendant, or by reference to a reasonable royalty representing the licence fee the patentee would have charged for authorised use of the patent. In the Pfizer v. Tyonex case, the court awarded damages in Pfizer’s favour, illustrating that Nigerian courts are willing to make financial awards in patent cases where the infringement is established and the loss is supported by evidence.²⁰

Account of profits. In the alternative to damages, the court may order the defendant to account for and pay over the profits derived from the infringing activity. As discussed in Remedies for Trademark Infringement in Nigeria: Injunctions, Damages and Criminal Liability, the election between damages and account of profits should be informed by the available financial evidence: where the defendant’s profits from the infringing activity exceed the patentee’s provable losses, an account of profits may yield a larger award.

Declaration of non-infringement. Where the defendant has sought a pre-emptive declaration that their product or process does not infringe a registered patent, and the court grants the declaration, the patentee cannot subsequently claim infringement in respect of the same conduct. The declaratory action is therefore both a defensive and a strategic commercial tool: a manufacturer who obtains a declaration of non-infringement before launching a product can proceed with confidence that the patent holder cannot later disrupt the launch with an infringement claim.

8. The Mode Nigeria v. Visocom Case: Patentability of Technology Already in Public Domain

In Mode Nigeria Applications Limited v. Visocom Limited and Ors, the central issue was whether the claimed invention was patentable in Nigeria, given that the subject technology already formed part of the state of the art.²¹ The case illustrates what is one of the most practically significant scenarios in Nigerian patent litigation: a patent registered under the deposit system for technology that was not, in fact, new at the time of filing. Because the Registry granted the patent without examining for novelty, the invalidity was only discovered in litigation. The Mode Nigeria case is a direct example of the deposit system’s real-world consequences: a party who relied on a registered patent and brought infringement proceedings found themselves defending against an invalidity challenge rather than securing the protection they thought the registration guaranteed.

This scenario imposes a burden on defendants that well-resourced multinational patent holders can absorb but that individual Nigerian inventors and small enterprises often cannot: the cost of a full Federal High Court validity and infringement trial, with expert witnesses and extensive documentary disclosure, is substantial, and the deposit system guarantees that at least some registered patents will turn out to be invalid when tested in litigation.

9. The Constitutional Dimension: Section 36 Fair Hearing and the Anton Piller Order

Section 36 of the 1999 Constitution guarantees the right to fair hearing, including the right to be present and to have the opportunity to respond to any case against one.²² The Anton Piller order, which is granted without notice to the defendant, is an exception to this constitutional guarantee that courts have justified on the basis of proportionality and the pressing need to prevent evidence destruction. Courts in Nigeria have been careful to ensure that without-notice orders are confined to cases where there is compelling evidence both of a strong prima facie case of infringement and a real risk of evidence disposal if notice is given. An Anton Piller order obtained without adequate grounds for the without-notice application is susceptible to a section 36 challenge on the basis that it denied the defendant the hearing to which they were entitled before their property was entered and searched.

The section 44 property rights guarantee protects both the patentee’s interest in their registered patent and the defendant’s interest in their business assets. A search order that seizes legitimate business assets alongside infringing goods requires the patentee’s representatives to exercise care in distinguishing between the two, since an over-broad seizure of legitimate property raises a section 44 claim by the defendant that their property has been taken without lawful authority.

10. Problem Question Framework

When a problem question raises patent infringement, work through the following sequence.

Confirm the patent is registered, has not expired or lapsed, and that the claimant has standing as patentee, assignee, or exclusive licensee.

Interpret the relevant claim. Use the description and drawings to determine the scope of protection the claim defines. Identify the essential elements of the claim.

Compare the defendant’s product or process against the interpreted claim. Does the defendant’s conduct fall literally within every element of the claim? If not, is there an argument for infringement by equivalents?

Identify which specific infringing act the defendant has done: making, importing, selling, using, stocking for sale (product patent), or applying the process or dealing in a product obtained directly by the process (process patent).

Address each relevant defence in turn. Is invalidity raised? Apply section 1(1) to the facts and assess whether the patent would survive a section 8 revocation challenge. Is experimental or non-commercial use established? Is there a prior use right? Is there a licence?

Identify remedies. Is urgency present? Address interlocutory injunction and Anton Piller availability. For financial remedies, identify whether damages or account of profits better serves the claimant on the available facts. Note that the section 9 open-ended remedies provision gives courts wide discretion.

11. Common Student Mistakes

Treating patent registration as proof of validity. Under the deposit system, registration certifies only formal compliance. The patent’s substantive validity under section 1(1) can only be tested in a revocation or invalidity challenge before the Federal High Court. A registered patent is presumed valid but that presumption is rebuttable.

Ignoring the claim interpretation step. The scope of a patent is defined by its claims, interpreted using the description. Students who simply state that the patent covers “the invention” without engaging in claim-level analysis have skipped the foundational step of infringement analysis.

Treating the experimental use defence as applying to commercially motivated research. The experimental or non-commercial use defence is narrow. It does not protect research conducted to develop commercial products, manufacturing for test batches intended for eventual sale, or any activity that forms part of a commercial supply chain. Only genuinely private and non-commercial experimental activity falls within it.

Overlooking the process patent’s reach to products of the process. A process patent gives the patentee the right to prevent importation and sale of products obtained directly by the patented process. A defendant who argues they have not applied the process in Nigeria, but who imports or sells a product manufactured abroad using that process, has not escaped infringement.

Treating an account of profits and damages as cumulative remedies. The same election principle that applies in copyright and trademark cases applies to patent infringement: the claimant must elect one or the other, not both from the same infringing acts.

Ignoring the standing requirement for exclusive licensees. An exclusive licensee has standing but may need to join the patentee to avoid duplicated proceedings. A non-exclusive licensee has no independent standing.

12. Quick Reference Table

13. Key Cases

Pfizer Limited v. Tyonex Nigeria Limited and Ebamic Pharmacy Limited (Federal High Court, 23 January 2007) is the most widely cited Nigerian patent infringement decision. Justice B.B. Aliyu held that Tyonex and Ebamic had infringed Pfizer’s Nigerian patent No. RP 9970 for Amlodipine Besylate (the active compound in Pfizer’s Norvasc cardiovascular drug) by importing and selling Amlovas, a competing product containing the same compound. The court granted an injunction and awarded damages, establishing that Nigerian courts will make meaningful remedial orders in pharmaceutical patent infringement cases where the claim is established on the evidence. The case also illustrates that importing a product containing a patented active compound infringes the patent even where the importation is of a finished dosage form rather than the raw compound itself.

Beijing Cotec New Technology Corp./Churchbells Pharmaceuticals Ltd. v. Green Life Pharmaceuticals and Ors is the leading illustration of the invalidity challenge succeeding in Nigerian patent litigation. The Federal High Court first granted an ex-parte order restraining Green Life from manufacturing and selling antimalarial drugs alleged to infringe the plaintiffs’ registered patent. On the defendant’s countervailing evidence, the court vacated the order following examination of whether the claimed technology was genuinely new. The case demonstrates the recurring dynamic in Nigerian patent proceedings where the deposit system’s absence of substantive examination means that validity and infringement are simultaneously contested in the same action.

Mode Nigeria Applications Limited v. Visocom Limited and Ors raised the foundational question of whether technology that already formed part of the state of the art at the time of filing could be validly patented in Nigeria under the deposit system. The case is the clearest judicial expression of the practical risk that the deposit system creates for defendants: a patentee who has registered a patent for pre-existing technology can use it to threaten or disrupt competitors, even though the patent would be revoked if judicially tested.

Footnotes

¹ Section 6, Patents and Designs Act Cap P2 LFN 2004.

² Section 6(a) and (b), Patents and Designs Act Cap P2 LFN 2004.

³ Section 6(2) and (3), Patents and Designs Act Cap P2 LFN 2004.

⁴ Lexology, ‘In review: patent legislation in Nigeria’ (November 2019).

⁵ Section 25, Patents and Designs Act Cap P2 LFN 2004.

⁶ Section 25(2), Patents and Designs Act Cap P2 LFN 2004.

⁷ Section 26, Patents and Designs Act Cap P2 LFN 2004.

⁸ Sections 25(2) and 26, Patents and Designs Act Cap P2 LFN 2004.

⁹ Mondaq, ‘Rights: Patent Infringement Issues in Nigeria’ (June 2020).

¹⁰ Ibid.

¹¹ NLIPW, ‘Patent Infringement Disputes in Nigeria: Two-Minute Lesson’ (March 2017), describing the Beijing Cotec/Churchbells v. Green Life proceedings.

¹² Mondaq (n 9).

¹³ Section 6(1), Patents and Designs Act Cap P2 LFN 2004 (by implication from the first-to-file framework); Lexology (n 4), identifying prior use as a recognised defence.

¹⁴ Lexology (n 4), identifying licensed use, compulsory licence, and ministerial authorisation as defences.

¹⁵ Lexology (n 4).

¹⁶ Ibid.

¹⁷ Section 9, Patents and Designs Act Cap P2 LFN 2004.

¹⁸ Bimak Associates, ‘The Protection and Enforcement of Patents in Nigeria’ (April 2023), describing the preliminary injunction as a standard remedy in Nigerian patent infringement proceedings.

¹⁹ World IP Review, ‘Infringement in Nigeria: Understanding your rights and remedies’ (August 2026).

²⁰ NLIPW (n 11); World IP Review (n 19).

²¹ Mondaq (n 9), Mode Nigeria Applications Limited v. Visocom Limited and Ors.

²² Section 36(1), Constitution of the Federal Republic of Nigeria 1999.