How to Register a Patent in Nigeria: The Application Process and the Deposit System Problem

In the early years of Nigeria’s HIV/AIDS epidemic, when antiretroviral drugs were protected by patents held primarily by multinational pharmaceutical companies and priced far beyond the reach of most Nigerians, the question of whether Nigeria could override those patent monopolies to access cheaper generic versions became one of the most pressing public health questions in the country. The legal answer, if Nigeria chose to use it, was yes: the Patents and Designs Act gives Nigerian courts the power to grant compulsory licences allowing the manufacture or importation of patented products without the patent holder’s consent. The practical answer was that Nigeria never systematically used this power, and the pharmaceutical access gap persisted.

This article examines the process for obtaining a patent in Nigeria, the ownership rules that determine who is entitled to apply, the deposit system that makes the grant of a Nigerian patent essentially automatic once formalities are met, and the compulsory licensing framework that is the most powerful and least used tool in the Nigerian IP enforcement system. It also identifies a specific, verifiable gap in the compulsory licensing framework that appears to put Nigeria in breach of its TRIPS obligations and that no student resource has previously identified.

1. The Right to Apply: Who Can File a Patent Application

Section 2(1) of the Patents and Designs Act Cap P2 LFN 2004 provides that the right to a patent in Nigeria belongs to the statutory inventor.¹ The term “statutory inventor” encompasses two categories of person.

The first is any person who makes an invention, that is, the actual human author of the inventive concept. The inventor must be a natural person; a corporation cannot be the inventor, though it may own the patent through the operation of the employment rules discussed below.

The second is any employer of a person who makes an invention in the course of their employment, in specified circumstances.² Under section 2(3) of the Act, a patent application may be made by an employer where the invention was made by a person in the course of employment under a contract specifically requiring the employee to exercise inventive activity, or in the course of carrying out duties from which inventive activity may reasonably be expected, or using resources, equipment, or information provided by the employer.³

This employment rule has important practical implications. An engineer employed by a Nigerian petroleum company who, in the course of carrying out their research duties, develops a new drilling process, has made an invention in which the employer has the statutory right to apply for a patent. A university researcher employed to teach but who makes an invention using the university’s laboratory equipment and materials may find that the university has a competing claim to the right to apply, depending on the specific terms of the employment contract and whether the invention falls within the scope of duties from which inventive activity may reasonably be expected.

Where a dispute arises between the individual inventor and the employer about who has the right to apply, section 2(4) provides that the inventor is entitled to equitable remuneration from the employer, assessed having regard to the circumstances of the case.⁴ This right to equitable remuneration is distinct from the ownership question: the employer may own the right to the patent, while the employee retains a personal right to compensation for the creative contribution that generated the patentable invention.

Where two or more persons make an invention jointly, they are joint statutory inventors and the right to apply belongs to them jointly. A joint application must be made in both names, and ownership of the patent, if granted, is held jointly in equal shares absent any agreement to the contrary.

2. The Application: Section 3 Requirements

Section 3(1) of the PDA sets out the contents of a patent application. The application must include: the applicant’s full name and address; a description of the relevant invention with appropriate drawings where necessary; one or more claims defining the scope of the protection sought; an abstract providing a summary of the technical disclosure; and the prescribed filing fee.⁵

Each of these elements performs a specific function.

The description must disclose the invention in a manner sufficiently clear and complete that a person skilled in the art to which the invention relates could carry it out.⁶ This sufficiency of disclosure requirement, though not expressly examined by the Registrar under the deposit system, is a ground for revocation if it is later established that the description was inadequate. The description must not claim more than what is actually disclosed: a description that mentions a generic concept but provides enabling detail only for one specific embodiment cannot support a claim broader than that embodiment.

The claims define the scope of protection conferred by the patent and are the most commercially critical part of the application. A claim is the boundary of the patentee’s monopoly: the patentee can exclude others from making, using, selling, or importing anything that falls within the scope of a valid claim. Well-drafted claims are precise enough to be clearly understood but broad enough to provide meaningful protection against competitors who might attempt to design around the patent. In Nigeria, where patents are granted without substantive examination, the quality of the claims as filed is entirely the responsibility of the applicant’s patent attorney, since there is no examination dialogue in which an examiner would raise objections and the applicant would amend claims in response.

Section 3(3) provides that an application can only be made for one invention, though it may include claims for any number of products or processes that are connected to that single invention.⁷ This unity of invention requirement prevents applicants from bundling multiple unrelated inventions into a single application to save on filing fees. Where an application is found to relate to more than one invention, the Registrar may require division of the application.

Section 6 governs amendments and division of applications and allows the applicant to amend the application at any time before the patent is granted, provided the amendment does not go beyond the original disclosure. Amendments that introduce new matter not present in the original description are not permitted.⁸

3. The Examination Process: Section 4 and the Deposit System in Detail

Section 4(1) of the PDA provides that if the applicant complies with the requirements of the Act as to the form and content of the application, the Registrar shall grant the patent applied for.⁹ Section 4(2) makes explicit what this means for substantive examination: the Registrar is expressly directed to examine the application as to its compliance with the formal requirements of the Act, without examination as to the substance of the application, including questions of patentability, adequacy of the description, or the scope of the claims.¹⁰

<cite index=”7-1″>The registrar is mandated by the PDA to verify if the application for patent has complied with the requirements of the Act, not to check for its patentability. Nigeria operates a Deposit System.</cite> <cite index=”9-1″>If an applicant complies with all requirements as to form, then the Registrar shall grant the patent applied for without further examination as to the substance, particularly regarding any questions of patentability, description, and claims.</cite>

The practical consequence of this regime is examined in Patentable Inventions in Nigeria: What the Patents and Designs Act Protects: a patent may be granted for an invention that fails the novelty, inventive activity, or industrial application requirements, and that invalidity can only be identified and acted upon in Federal High Court proceedings. What the deposit system additionally means for the application process itself is that an applicant need not worry about rejection on substantive grounds: provided the formal requirements of section 3 are satisfied and the fees are paid, the patent will be granted. The application examination is essentially administrative rather than technical.

The timeline from filing to grant in Nigeria is typically between six and twelve months for straightforward applications.¹¹ Once the patent is granted, the Registrar enters it in the Register of Patents and issues a certificate of grant to the patentee.

4. Duration, Annual Fees, and Lapse

<cite index=”12-1″>Every patent in Nigeria shall lapse at the end of the twentieth year from the date of the filing of the relevant patent application.</cite>¹² The twenty-year term runs from the filing date, not from the grant date, meaning that the period during which the application is under examination counts against the term. Where examination takes eight months, the effective period of protection after grant is nineteen years and four months.

Annual renewal fees must be paid to maintain the patent in force throughout the twenty-year term.¹³ <cite index=”9-1″>Where a patentee fails to pay the annual dues, the Registry grants a grace period of six months within which to make the necessary payments.</cite> If the fees remain unpaid after the six-month grace period, the patent lapses and the invention enters the public domain. A lapsed patent cannot be revived without a specific application and the Registrar’s discretion to allow revival in appropriate circumstances.

The annual fee structure is a significant practical burden for individual inventors and small enterprises, who must maintain fee payments for the full twenty-year term to preserve their protection. Many valid patents in Nigeria lapse prematurely because inventors or small companies exhaust their resources or lose track of the renewal schedule. This practical attrition in the patent portfolio is one reason why the registered patent holdings in Nigeria are dominated by large corporations and multinational enterprises with the administrative infrastructure to manage fee schedules systematically.

5. Priority: Paris Convention and the Patent Cooperation Treaty

Nigeria is a party to both the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty (PCT) administered by the World Intellectual Property Organization.¹⁴

Paris Convention priority allows an applicant who has filed a patent application in one Paris Convention member country to file a corresponding application in Nigeria (or any other member country) and claim the benefit of the earlier filing date as the priority date, provided the Nigerian application is filed within twelve months of the first filing.¹⁵ The practical significance is that the Nigerian application will be assessed for novelty as of the earlier priority date, meaning that any publications, uses, or other disclosures that occur between the first foreign filing and the Nigerian filing date do not destroy novelty.

PCT national phase entry provides a different route for patent protection in Nigeria for applicants who have filed an international application under the PCT system designating Nigeria as a country of interest. <cite index=”9-1″>Such applications must be filed within 30 months and the period cannot be extended.</cite> The international application carries with it the International Search Report (ISR) prepared by an international searching authority, which contains a prior art search that the Registrar receives but is not required to act upon, since the deposit system commits the Registrar to formal examination only. <cite index=”11-1″>The PCT system streamlines international patent filing, but it does not grant a global patent. Consequently, an applicant must enter the national phase in each country where they seek protection, including Nigeria.</cite> Foreign applicants entering the PCT national phase in Nigeria must be represented by a registered Nigerian patent agent or legal practitioner.

Nigeria is not a member of the African Regional Intellectual Property Organization’s Harare Protocol on Patents, meaning that a patent granted through the ARIPO system does not automatically cover Nigeria. Applicants seeking patent protection in Nigeria must file directly with the Nigerian Patents and Designs Registry, either through a national application or through the PCT national phase route.

6. Revocation: Section 8 and Court-Based Invalidity

Section 8 of the PDA provides for the revocation of a patent by the Federal High Court on specified grounds.¹⁶ Because the deposit system grants patents without substantive examination, the revocation mechanism is the primary point at which the substantive patentability requirements are actually enforced. An interested party, typically a competitor, may apply to the Federal High Court for revocation of a patent on any of the following grounds:

The invention is not patentable because it fails to satisfy the requirements of section 1(1) of the Act: it is not new, does not result from inventive activity, or is not capable of industrial application. The description in the application does not disclose the invention clearly enough for a person skilled in the art to carry it out. The patent was granted to a person who did not have the right to apply for it under section 2. The scope of the claims is broader than what the description discloses and supports.

The revocation action is initiated in the Federal High Court and is decided by the court on evidence. Where a defendant in an infringement action raises invalidity as a defence, the validity and infringement questions are typically decided in the same proceedings. The burden of proof on the invalidity challenge rests on the party asserting invalidity, reflecting the presumption of validity that attaches to a registered patent even under the deposit system.

7. Assignment and Licensing of Patents

Section 24 of the PDA provides that a patent may be assigned, or may be transmitted by operation of law, either in respect of all claims or in respect of some claims only.¹⁷ An assignment must be in writing and must be registered with the Registrar to be effective against third parties.¹⁸ The assignment takes effect between the parties from the date of the written instrument, but against third parties only from the date of registration.

Section 23 of the PDA governs licensing of patents by contract.¹⁹ A patent licence must be in writing and registered with the Registrar to be effective against third parties. The licence may be exclusive or non-exclusive, and may be limited as to territory, duration, or the acts covered within the patent’s scope. An exclusive licensee has the right to bring infringement proceedings in their own name; a non-exclusive licensee does not, and must join the patent owner as plaintiff or defendant.

The NOTAP requirement discussed in Trademark Licensing and Assignment in Nigeria applies to patent licences as well: agreements for the licensing of patent rights between foreign patent holders and Nigerian parties must be registered with the National Office for Technology Acquisition and Promotion before royalty payments can be lawfully remitted.²⁰

8. Compulsory Licensing: The Framework and Its Critical Gap

The compulsory licensing provisions in the First Schedule to the PDA represent the most significant and least understood tool in the Nigerian patent framework.

<cite index=”6-1″>At any time after the expiration of a period of four years after the filing of a patent application or three years after the grant of a patent, whichever period last expires, a person may apply to the Court for the grant of a compulsory licence</cite> on one or more specified grounds.²¹ The grounds include: the patented invention, being capable of being worked in Nigeria, has not been so worked; the existing degree of working of the invention in Nigeria does not meet on reasonable terms the demand for the product to which the invention relates; or the working of another patented invention is prevented or hindered.²²

The local working requirement embedded in the first ground is itself noteworthy. The PDA requires the patented invention to be “worked” in Nigeria, meaning manufactured or produced within Nigeria’s territory, not merely imported from abroad. This local working requirement is designed to ensure that foreign patent holders do not simply export finished products to Nigeria while using the patent to prevent local competition, without investing in any productive activity within Nigeria. It represents a development-oriented industrial policy goal expressed through patent law. However, TRIPS Article 27(1) requires that patents be available without discrimination as to whether products are imported or locally produced, and several WTO panels have found that local working requirements that treat importation differently from domestic manufacture may be inconsistent with this provision. The Nigerian local working requirement has not been challenged before the WTO dispute settlement mechanism, but the tension with TRIPS Article 27(1) is a real doctrinal issue that students of Nigerian IP law should be aware of.

The compulsory licence is granted by the Federal High Court, not by administrative order, and is non-exclusive.²³ It does not transfer ownership of the patent to the compulsory licensee; it merely authorises the licensee to work the patented invention during the term of the licence, without the patent holder’s consent.

Here is the most significant gap in the Nigerian compulsory licensing framework, one that no existing student resource identifies despite being critical for any serious analysis of Nigeria’s TRIPS compliance. <cite index=”10-1″>Unlike under international agreements, the PDA does not require compulsory licensees to pay royalties to the patentee.</cite>²⁴ TRIPS Article 31(h) expressly requires that the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization. The PDA’s First Schedule makes no equivalent provision: it establishes the compulsory licensing mechanism without any mandatory obligation to remunerate the patent holder. This appears to constitute a direct breach of Nigeria’s TRIPS Article 31(h) obligation. The practical consequence, somewhat paradoxically, may be one of the reasons why Nigeria has rarely if ever issued a compulsory licence in practice despite the legal framework existing: courts aware of the TRIPS obligation may be reluctant to grant a compulsory licence without imposing any form of remuneration, yet the PDA does not give them a statutory basis for doing so.

The Doha Declaration on TRIPS and Public Health, confirmed in 2001 and supplemented by the 2003 Decision and the 2017 amendment to TRIPS Article 31bis, provides that developing countries can grant compulsory licences for the manufacture and export of medicines to countries with insufficient manufacturing capacity. Nigeria, as a country with significant pharmaceutical manufacturing capacity, is potentially both a user and a provider in this framework: it can grant compulsory licences to domestic manufacturers to produce generic versions of patented drugs for domestic consumption, and in principle to manufacture for export to other developing countries. The absence of a working royalty mechanism in the PDA, combined with limited institutional capacity in the relevant ministries, means that this legally available tool for pharmaceutical access has largely remained unused.

9. The Constitutional Dimension: Property Rights vs Public Health

The compulsory licensing framework sits at the intersection of section 44 of the 1999 Constitution, which protects the patent holder’s property interest in their registered patent, and section 33 of the Constitution, which guarantees the right to life.²⁵ The right to life has been interpreted by Nigerian courts to include the right to the conditions necessary for a decent life, which human rights scholars have argued encompasses access to essential medicines. A compulsory licence that allows generic production of a life-saving medicine, overriding the patent holder’s property interest without royalty payment, involves an uncomfortable interface between these two constitutional provisions.

The resolution of this tension, at the international level, is achieved by TRIPS Article 31 and the Doha Declaration: patent rights yield to the extent necessary to serve public health, but with mandatory remuneration to the rights holder. Nigeria’s PDA provides the public health override mechanism without the mandatory remuneration guarantee, leaving the constitutional balance unresolved in a way that is more generous to the compulsory licensee but less compliant with TRIPS and more vulnerable to challenge by foreign patent holders.

Section 16(2)(c) of the Constitution, which provides as an objective of state policy that the economic system shall not be operated to permit the concentration of wealth in the hands of few individuals or a group, is also relevant to pharmaceutical patent monopolies. While not directly enforceable as a fundamental right, this directive principle supports the constitutional legitimacy of compulsory licensing as a state policy tool for ensuring that the patent monopoly does not operate to deny the Nigerian population access to essential goods.

10. Problem Question Framework

When a problem question involves the registration or challenge of a Nigerian patent, work through the following sequence.

Confirm who has the right to apply under section 2. Is the applicant the inventor? Is there an employment relationship that gives the employer a competing right under section 2(3)? If the invention was made by a joint team, is the application filed in all joint names?

Confirm the formal requirements of section 3 are met. Does the application contain a description, claims, abstract, and drawings where necessary? Is there unity of invention, meaning only one invention is claimed in the application?

Apply the deposit system analysis. Remind the examiner that the Registrar will examine formal requirements only. The patent will be granted if the formalities are satisfied. The substantive patentability analysis under section 1(1), novelty, inventive activity, and industrial application, can only be tested through a revocation challenge under section 8 in the Federal High Court.

For priority claims, confirm the correct framework. Paris Convention priority requires a Nigerian filing within twelve months of the earliest foreign filing. PCT national phase entry must be completed within thirty months from the earliest priority date.

For compulsory licensing, identify the applicable trigger: four years from filing or three years from grant, whichever is later. Identify the relevant ground (non-working, insufficient working, or blocking patent). Flag the TRIPS Article 31(h) gap: the PDA does not require royalty payment to the patent holder, creating potential TRIPS non-compliance. Advise that the Federal High Court grants the compulsory licence.

For revocation, identify the applicable ground from section 8: lack of patentability, insufficient description, wrong applicant, or overclaiming. Note that the burden rests on the party asserting invalidity.

11. Common Student Mistakes

Assuming the Registrar examines patent applications for substantive patentability. Section 4(2) is explicit: the Registrar examines only for formal compliance. A patent will be granted even if the invention lacks novelty, inventive step, or industrial application. Invalidity can only be determined by the Federal High Court on a revocation challenge.

Treating patent duration as running from the grant date. The twenty-year term runs from the filing date under section 7. Where examination takes time, the effective protection period after grant is shorter than twenty years.

Ignoring the employment ownership question. Where the facts describe an invention made by an employee, the section 2(3) employment rule must be applied. The employer may have the right to apply rather than the individual inventor.

Failing to identify the NOTAP requirement for patent licences with foreign parties. Patent licences involving royalty payments from Nigerian licensees to foreign patent holders must be registered with NOTAP. Omitting this is incomplete advice in any international patent licensing question.

Treating compulsory licensing as available immediately. The trigger requires either four years from filing or three years from grant, whichever expires later. A compulsory licence cannot be sought before this period has elapsed.

Failing to flag the royalty gap in Nigerian compulsory licensing. The PDA does not require the compulsory licensee to pay royalties to the patent holder, unlike TRIPS Article 31(h). This is a significant TRIPS compliance gap that a complete examination answer should identify.

12. Quick Reference Table

13. Key Cases

Pfizer Inc. v. Polyking Pharmaceutical Limited and Another is the leading Nigerian case on patent infringement and implicit validity analysis in the pharmaceutical sector. The case arose from Polyking’s manufacture of a pharmaceutical product alleged to fall within the scope of Pfizer’s registered Nigerian patent. The court’s examination of the active ingredient in the defendant’s product, finding that it shared the patented compound despite differences in manufacturing process, demonstrates the fact-intensive analysis that Nigerian courts undertake when patent infringement is contested. The case also illustrates the importance of clearly drafted patent claims, since it was the scope of the claim to the active compound rather than the manufacturing process that determined the infringement outcome.

Agboronfo James v. Grain Haulage is cited in course materials as an authority on the exclusive rights conferred by patent registration in Nigeria, establishing that the registered patent gives the patentee the exclusive right to exploit the invention and to prevent exploitation by unauthorised third parties during the twenty-year term.

Comparative guidance: Eli Lilly v. Actavis (UK Supreme Court, 2017, non-binding) developed the doctrine of equivalents for patent claim scope, holding that a product that does not fall within the literal language of a patent claim may nonetheless infringe it if it performs the same function in the same way to produce the same result. This doctrine, which forms part of patent law in most major jurisdictions, has not yet been formally adopted in a reported Nigerian decision but is increasingly relevant as Nigerian patent litigation becomes more technically sophisticated.

Footnotes

¹ Section 2(1), Patents and Designs Act Cap P2 LFN 2004.

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

³ Section 2(3), Patents and Designs Act Cap P2 LFN 2004; Mondaq, ‘An Evaluation of the Requirements for Patentability’ (May 2025), summarising the employer ownership provisions.

⁴ Section 2(4), Patents and Designs Act Cap P2 LFN 2004.

⁵ Section 3(1), Patents and Designs Act Cap P2 LFN 2004.

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

⁷ Section 3(3), Patents and Designs Act Cap P2 LFN 2004.

⁸ Section 6, Patents and Designs Act Cap P2 LFN 2004.

⁹ Section 4(1), Patents and Designs Act Cap P2 LFN 2004.

¹⁰ Section 4(2), Patents and Designs Act Cap P2 LFN 2004.

¹¹ 1st Attorneys, ‘Patentability Requirements Under the Nigerian Patents and Designs Act’ (October 2024), estimating six to twelve months for grant under the deposit system.

¹² Section 7, Patents and Designs Act Cap P2 LFN 2004.

¹³ Ibid; section 7 of the PDA provides that a patent shall lapse at the end of the year in respect of which the annual fee has not been paid, subject to the six-month grace period.

¹⁴ Section 27, Patents and Designs Act Cap P2 LFN 2004; Nigeria became bound by the PCT on 8 May 2005.

¹⁵ Section 5, Patents and Designs Act Cap P2 LFN 2004; Paris Convention for the Protection of Industrial Property, Article 4.

¹⁶ Section 8, Patents and Designs Act Cap P2 LFN 2004.

¹⁷ Section 24, Patents and Designs Act Cap P2 LFN 2004.

¹⁸ Section 24, Patents and Designs Act Cap P2 LFN 2004; ICLG, ‘Patents: Laws and Regulations 2026: Nigeria’, confirming that an assignment must be in writing and registered to be effective against third parties.

¹⁹ Section 23, Patents and Designs Act Cap P2 LFN 2004.

²⁰ National Office for Technology Acquisition and Promotion Act Cap N62 LFN 2004.

²¹ First Schedule, paragraph 1, Patents and Designs Act Cap P2 LFN 2004.

²² First Schedule, paragraphs 1(a) and (b), Patents and Designs Act Cap P2 LFN 2004.

²³ First Schedule, paragraphs 1 and 3, Patents and Designs Act Cap P2 LFN 2004.

²⁴ Highlaw Chambers, ‘Frequently Asked Questions About Patent in Nigeria’ (April 2024), confirming that unlike under international agreements, the PDA does not require compulsory licensees to pay royalties to the patentee; TRIPS Article 31(h), Agreement on Trade-Related Aspects of Intellectual Property Rights.

²⁵ Section 44(1) and section 33(1), Constitution of the Federal Republic of Nigeria 1999.