Patentable Inventions in Nigeria: What the Patents and Designs Act Protects

In 2001, the World Trade Organization’s Doha Declaration on TRIPS and Public Health confirmed that developing countries could use compulsory licensing and other TRIPS flexibilities to produce or import generic versions of patented medicines for public health emergencies. Nigeria, a country where access to patented antiretroviral drugs and essential medicines has been a live public health issue, is one of the countries for whom that Declaration was most immediately relevant. Understanding the Nigerian patent system requires not only understanding what inventions can be patented, but understanding the structural weaknesses of the system that grants those patents and the international framework within which the system operates.

This article examines the three conditions for patentability under the Patents and Designs Act Cap P2 LFN 2004, the categories of invention expressly excluded from patent protection, and the features of the Nigerian patent system that make it distinctive among comparable jurisdictions. It also examines the TRIPS framework and the traditional knowledge question that the PDA leaves entirely unresolved.

1. The Governing Framework: The Patents and Designs Act

The principal legislation governing patents in Nigeria is the Patents and Designs Act Cap P2 LFN 2004, originally enacted in 1970 as Decree No. 60 of 1970, commenced in 1971.¹ The Patents and Designs Registry, which sits within the Trademarks, Patents and Designs Registry in the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment, is the administrative body responsible for receiving and processing patent applications.

The PDA is a product of its era. It predates the TRIPS Agreement by more than two decades and was drafted at a time when Nigeria’s principal concern as a newly independent state was to attract foreign technology and to develop a national industrial base, rather than to cultivate a domestic innovation ecosystem. Many of its provisions reflect this development-era orientation, including the compulsory licensing provisions discussed in Article 21 of this cluster and the relative ease with which a patent can be registered regardless of whether it genuinely meets the substantive patentability requirements.

A comprehensive reform of the PDA has been under discussion for several decades. The proposed Patents, Industrial Designs, Trade Marks and Service Marks Bill, in various draft forms, has been before the National Assembly but has not yet been enacted into law. For the purposes of this article, the current law is the PDA as amended by the Patents and Designs (Amendment) Decree 1999. References to “the Act” mean that statute.

2. The Three Conditions for Patentability: Section 1(1)

Section 1(1) of the PDA provides that, subject to that section, an invention is patentable if: it is new, results from inventive activity, and is capable of industrial application; or if it constitutes an improvement upon a patented invention and also is new, results from inventive activity, and is capable of industrial application.²

Three cumulative conditions must all be satisfied.

3. First Condition: Novelty

An invention is new if it does not form part of the state of the art.³ Section 1(2)(a) defines the state of the art as everything made available to the public anywhere in the world before the date of the filing of the patent application, whether by written or oral description, by use, or in any other way.⁴

The state of the art is global and comprehensive. The invention must be new not merely in Nigeria but anywhere in the world: a product or process that has been commercially exploited in Japan, published in a German scientific journal, or publicly described in an American patent application forms part of the global state of the art and cannot be patented in Nigeria as if it were a new invention. This worldwide novelty standard, which aligns the PDA with TRIPS Article 27 and the international standard under the Patent Cooperation Treaty, means that a Nigerian inventor claiming a patent for a product that has been sold commercially abroad for years will face an absolute novelty objection regardless of whether the product has ever been known in Nigeria.

The “made available to the public” formulation is broad. Novelty is destroyed by a single prior disclosure, however obscure. A passing mention in an obscure regional academic journal, a demonstration at a trade fair attended by a small number of specialists, or a product launch in a single test market are each sufficient to destroy novelty if they occurred before the patent application filing date. The disclosure need not have been widely noticed; it is sufficient that it was accessible to the public without any obligation of confidentiality.

The Act provides one express exception to the novelty-destroying effect of prior disclosure. Disclosure made by the applicant, or by a person who obtained the information from the applicant, within twelve months preceding the filing date of the application, does not destroy novelty.⁵ This twelve-month grace period is important for Nigerian researchers and academic inventors who may present work at conferences or publish preliminary findings before filing a patent application. However, the grace period is narrow: it protects only disclosures made by or through the applicant, not third-party disclosures or independent parallel developments by others.

4. Second Condition: Inventive Activity

The requirement that an invention “results from inventive activity” corresponds to the international concept of inventive step or non-obviousness. Section 1(2)(b) of the PDA provides that an invention shall be taken to involve inventive activity if it does not form part of the state of the art in such a way that, having regard to that state of the art, it would have been obvious at the date of the filing of the patent application to a person skilled in the art to which the invention relates.⁶

Two analytical dimensions structure this assessment.

The first is the perspective of the “person skilled in the art.” This hypothetical person is not the world’s leading expert on the subject, nor is it a total layperson. It is a person with ordinary skill and knowledge in the relevant technical field, familiar with the body of prior art in that field but not possessed of inventive genius. The question is whether that person, looking at the state of the art as it existed on the filing date, would have found the claimed invention obvious: an obvious step from what was already known, rather than a creative leap.

The second is the degree of advance required. Nigerian courts and academic commentators have identified two characteristics that an inventive step must have: the difference from the state of the art must be “inventive,” meaning the product of a creative idea rather than routine technical work, and it must be a “step,” meaning a noticeable and significant advance, not a trivial modification that any skilled practitioner would make as a matter of routine.⁷ An invention that merely combines two known elements in a predictable way, without any unexpected or non-obvious result, is likely to be found obvious and to fail the inventive step requirement.

One specific application of the inventive activity requirement that deserves attention is the treatment of “improvements upon a patented invention” under section 1(1)(b). An improvement on an existing patented product or process can itself be patented, provided the improvement also satisfies all three conditions of novelty, inventive activity, and industrial application. This provision has significant commercial implications in the pharmaceutical sector, where the practice of “evergreening,” filing successive improvement patents on minor modifications to existing pharmaceutical products to extend the effective patent monopoly beyond the original twenty-year term, has been widely criticised as a strategy for delaying generic drug competition. The PDA’s language does not expressly prevent evergreening, and the absence of any substantive examination mechanism, discussed in the next section, means that incremental improvement patents can be registered even where the “improvement” may not genuinely meet the inventive step threshold.

5. Third Condition: Industrial Application

Section 1(2)(c) of the PDA provides that an invention shall be taken to be capable of industrial application if it can be made or used in any kind of industry, including agriculture.⁸ The term “industry” is interpreted broadly: it encompasses manufacturing, agriculture, mining, chemical production, electronic technology, pharmaceutical production, and any other form of productive human activity that results in goods or services.

Pure scientific discoveries, mathematical methods, mental acts, and aesthetic creations are not patentable, because they cannot, as such, be “made or used” in industry. The discovery that a previously unknown natural compound exists in a Nigerian plant, standing alone, does not satisfy the industrial application requirement. However, a method for extracting and purifying that compound for a specific pharmaceutical use, or a formulation using the compound to treat a particular condition, would satisfy the industrial application requirement if the other conditions are also met. This distinction between a discovery as such and an invention based on that discovery is the primary boundary between patent law, which protects inventive applications, and pure science, which belongs to the commons of human knowledge.

The industrial application requirement has one result particularly relevant to Nigerian agricultural and biotechnology innovation: a new plant variety produced through natural processes of selection and breeding does not satisfy the industrial application requirement as a patentable invention in Nigeria, but a microbiological process for producing such a variety, or a biotechnological technique for introducing specific traits into a plant variety, may satisfy it. The excluded subject matter provisions, discussed below, interact with the industrial application requirement to define the boundary of patentable biotechnology in Nigeria.

6. Excluded Subject Matter: Section 1(4) and (5)

Even where an invention satisfies all three conditions of novelty, inventive activity, and industrial application, certain categories of subject matter are expressly excluded from patentability under the PDA.

Section 1(4) of the Act excludes from patentability: plant or animal varieties; essentially biological processes for the production of plants or animals, other than microbiological processes and their products; and inventions the publication or exploitation of which would be contrary to public order or morality.⁹

Section 1(5) adds that the following shall not be patentable as such: scientific discoveries; mathematical methods; mental acts or plans; rules for playing games; methods for doing business; computer programs; and presentation of information.¹⁰

The “as such” language in section 1(5) is important. A computer program as such cannot be patented, but a technical invention that is implemented by a computer program and produces a technical effect can be patented. Similarly, a method for doing business as such cannot be patented, but a technical process used in a business that involves a non-obvious technical step may be patentable. This distinction is consistently contested in patent practice globally, and Nigeria has not yet generated a body of decided cases that definitively maps the boundary in the Nigerian context.

The exclusion of plant and animal varieties has significant implications for Nigerian agricultural innovation and for the traditional knowledge question discussed in section 9 below. Nigerian plant breeders and agricultural communities that develop new crop varieties through selection and breeding cannot protect those varieties through the patent system. They must instead look to the Plant Variety Protection Act, where such legislation exists, or rely on trade secret protection or other mechanisms.

The public order and morality exclusion is the PDA’s mechanism for screening out inventions that, while technically patentable on the substantive criteria, should not be given the state’s monopoly endorsement because their use would harm society. Nigerian courts have not yet had occasion to apply this exclusion, but it would cover weapons of mass destruction designed for civilian harm, inventions designed to facilitate human trafficking, and similar categories whose exploitation would be fundamentally contrary to public welfare.

7. The Deposit System: Nigeria’s Most Distinctive Patent Feature

The single most important structural feature of the Nigerian patent system for students to understand, and the one most consistently omitted from available resources, is what practitioners call the “deposit system.” The Nigerian Patents and Designs Registry operates a purely formal examination process: when a patent application is filed, the Registrar examines it only for compliance with formal requirements, such as whether the application contains the prescribed description, claims, abstract, and drawings, and whether the applicable fees have been paid.¹¹ The Registrar does not examine the application for substantive patentability: there is no official assessment of whether the claimed invention is genuinely new, whether it involves inventive activity, or whether it is capable of industrial application.

The consequence is that a patent can be registered in Nigeria for an invention that does not satisfy section 1(1)’s substantive requirements. A patent for something already in the state of the art, for an invention that is obvious to any skilled practitioner, or for subject matter that is expressly excluded under section 1(4) or (5), will be granted if the formal application requirements are met and the fees are paid. The patent certificate issued by the Registrar is therefore not a government certification that the invention is genuinely patentable; it is merely an administrative record that an application was made, the fees were paid, and the formal documents were in order.

This feature stands in sharp contrast to the patent systems of major industrialised countries, where substantive examination by technically qualified patent examiners is the norm. The United States Patent and Trademark Office, the European Patent Office, and the UK Intellectual Property Office all maintain large bodies of technically trained examiners who assess applications for novelty and inventive step before a patent is granted. Nigeria has no equivalent examination function.

The practical consequence is critical: in Nigeria, the validity of a patent is presumed from the face of the registration, but that presumption can be challenged and rebutted in litigation. A defendant facing a patent infringement claim can plead invalidity of the patent as a defence, arguing that the claimed invention was not new, did not result from inventive activity, or was not capable of industrial application at the time of filing. If the court accepts the invalidity argument, the patent is revoked and the infringement claim fails entirely. This means that the true test of whether a Nigerian patent is valid is not the Registry’s formal grant, which is essentially automatic, but whether the patent survives an invalidity challenge in the Federal High Court.

The deposit system has implications for patent strategy in Nigeria. Foreign patent holders who have already obtained substantive patents in major jurisdictions, meaning patents whose novelty and inventive step have been examined and confirmed by technically qualified examiners, face relatively limited invalidity risk when they seek registration of the same patent in Nigeria. But domestic inventors who file Nigeria-first patent applications without having their inventions subjected to any substantive examination may hold patents of uncertain validity that have never been tested against the state of the art.

8. TRIPS and Nigeria’s International Patent Obligations

Nigeria’s patent system operates within the framework of its TRIPS obligations as a WTO member since 1995. TRIPS Article 27 requires all WTO members to make patents available for any inventions, in all fields of technology, that are new, involve an inventive step, and are capable of industrial application, without discrimination as to the field of technology, the place of invention, or whether products are imported or locally produced.¹²

The PDA’s substantive patentability requirements in section 1(1) are, on their face, consistent with TRIPS Article 27. But the deposit system’s failure to examine those requirements means that Nigeria’s formal patent grants may not reflect the substantive standard that TRIPS requires to be applied. Whether a patent registry that registers patents without examining for novelty and inventive step is, as a matter of treaty compliance, providing TRIPS-compliant patent protection is a question that has not been directly adjudicated in any international forum.

TRIPS Article 27(3)(b) explicitly allows member states to exclude plants and animals from patentability, which the PDA does. TRIPS Article 30 allows narrow exceptions to patent rights. TRIPS Article 31 allows compulsory licensing in specified circumstances, an important flexibility for Nigeria in the context of pharmaceutical patents and public health emergencies, addressed more fully in How to Register a Patent in Nigeria: The Application Process and the Deposit System Problem.

The Doha Declaration on TRIPS and Public Health, adopted by all WTO members in 2001, confirmed that TRIPS should be interpreted and implemented in a manner supportive of WTO members’ rights to protect public health and promote access to medicines. It specifically confirmed that each WTO member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted. This declaration has particular relevance to Nigeria, where pharmaceutical patent monopolies on antiretroviral drugs, antimalarials, and other essential medicines represent a significant barrier to public health access.

Nigeria is also a member of the African Regional Intellectual Property Organization (ARIPO), which administers a regional patent filing system under the Harare Protocol. A patent granted under the Harare Protocol covers all ARIPO member states in which the applicant designates protection. Nigeria is not currently a party to the Harare Protocol, though the question of accession has been discussed in the context of Nigeria’s broader IP reform agenda.

9. Traditional Knowledge and Biopiracy: The PDA’s Unresolved Gap

The most significant structural gap in Nigerian patent law, and the one with the greatest consequence for Nigeria’s long-term interest in its own intellectual resources, is the PDA’s complete silence on the protection of traditional knowledge and the prevention of biopiracy.

Nigeria’s indigenous communities possess extensive traditional knowledge of medicinal plants, agricultural techniques, and biological resources accumulated over centuries of practice. This knowledge base is valuable: many pharmaceutical compounds currently in commercial use worldwide were developed from leads discovered through traditional knowledge. Pharmaceutical companies and research institutions have, in some documented cases, obtained patents for inventions based on traditional knowledge without adequately crediting, compensating, or obtaining consent from the communities whose knowledge formed the foundation of the invention.

The PDA provides no mechanism for the protection of traditional knowledge from this form of appropriation. There is no provision requiring patent applicants to disclose the origin of biological material or traditional knowledge used in their invention, no mechanism for communities to assert prior art status for traditional knowledge that predates a patent application, and no compulsory benefit-sharing arrangement with source communities where a patent is based on traditional knowledge.

Under the Convention on Biological Diversity (1992) and the Nagoya Protocol (2010) on Access and Benefit-Sharing, to which Nigeria is a party, users of genetic resources and associated traditional knowledge are required to obtain prior informed consent from the providing country and to share benefits equitably with the communities concerned.¹³ The Nagoya Protocol’s requirements are, however, directed primarily at access to biological material rather than at the patent application process itself, and Nigeria’s domestic implementing legislation is not yet fully developed.

The constitutional dimension of traditional knowledge protection connects to section 17(2)(c) of the 1999 Constitution, which provides that the state shall direct its policy towards ensuring that the economic system is not operated in such a way as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or a group. The patenting of Nigeria’s traditional biological knowledge by foreign multinational corporations, without benefit-sharing or community consent, represents precisely the kind of concentration of intellectual wealth that this directive principle, though not directly enforceable, signals as constitutionally undesirable.

For examination purposes, the traditional knowledge gap provides a rich analytical dimension that distinguishes a sophisticated answer from a recitation of section 1(1). A student who can identify the biopiracy risk, explain why the PDA does not address it, connect it to the Nagoya Protocol obligations, and articulate what a reform-minded legislature ought to include in the replacement statute demonstrates analytical capability at a level that the standard patentability question rarely draws out.

10. Problem Question Framework

When a problem question asks whether a particular invention is patentable in Nigeria, work through the following sequence.

Identify what the invention actually is. Is it a product, a process, or both? Is it a mechanical, chemical, biological, or digital invention? This initial categorisation determines which of the exclusions might apply.

Check the excluded subject matter first. Does the invention fall within the plant or animal variety exclusion? Is it an essentially biological process? Does it claim a computer program as such, a mathematical method as such, or a business method as such? If any exclusion clearly applies, the invention is not patentable regardless of its novelty or inventive step.

Apply novelty: determine the date of filing and identify anything in the global state of the art, before that date, that discloses the same invention. Remember the twelve-month grace period for the applicant’s own prior disclosures only.

Apply inventive activity: from the perspective of a person skilled in the relevant technical art, considering the state of the art as of the filing date, would the invention have been obvious? Apply the two-element test: creative idea plus noticeable advance.

Apply industrial application: can the invention be made or used in any form of industry? Pure scientific discoveries, abstract ideas, and mental acts fail this test.

Flag the deposit system. In a Nigerian patent problem, remind the examiner that registration does not certify substantive patentability: the Registrar examines only formal requirements. A granted patent may be challenged and revoked in litigation on grounds of invalidity, and this affects the strategic value of the registration.

For improvement patents, apply all three conditions to the improvement separately, not merely to the underlying patented invention.

11. Common Student Mistakes

Treating patent registration as certification of patentability. The deposit system means registration is purely formal. A registered patent in Nigeria has not been examined for novelty, inventive step, or industrial application. Statements like “the patent was registered, therefore the invention is patentable” conflate administrative registration with substantive legal validity.

Applying a local rather than global novelty standard. Novelty under the PDA is assessed against everything made available to the public anywhere in the world before the filing date. An invention that is new to Nigeria but is already known elsewhere is not novel.

Treating the twelve-month grace period as applying to third-party disclosures. The grace period applies only to disclosures made by the applicant or persons who obtained the information from the applicant. Independent third-party disclosures before the filing date destroy novelty even if they occur within the twelve-month window.

Conflating “industrial application” with commercial success. An invention that has never been commercially exploited can still be capable of industrial application if it can in principle be made or used in industry. Conversely, a commercially successful product is not patentable if it fails the novelty or inventive step requirement.

Ignoring the traditional knowledge dimension in questions about Nigerian biotechnology or pharmaceutical patents. Where the facts involve biological material or processes that might draw on traditional knowledge, the biopiracy question and Nigeria’s Nagoya Protocol obligations should be identified.

Treating improvement patents as free from patentability requirements. An improvement patent under section 1(1)(b) must independently satisfy all three conditions of novelty, inventive activity, and industrial application. The improvement must itself be new, non-obvious, and industrially applicable; it is not enough that it improves upon an existing valid patent.

12. Quick Reference Table

13. Key Cases

Pfizer Inc. v. Polyking Pharmaceutical Limited and Another is the leading Nigerian case on patent validity and infringement, demonstrating how Nigerian courts analyse patent claims against the state of the art and assess whether an allegedly infringing product falls within the scope of a valid patent. The court examined the active pharmaceutical ingredient in the defendant’s product and found it shared the patented ingredient with Pfizer’s registered patent, even though the manufacturing processes differed. The case illustrates the court-based validity determination that the deposit system leaves necessary.

Agboronfo James v. Grain Haulage is cited in the course materials as an authority on patent rights in Nigeria, establishing the principle that a registered patent gives the patentee the exclusive right to exploit the invention and to prevent others from doing so without authorisation during the twenty-year period.

Comparative guidance: Actavis UK Limited v. Eli Lilly and Company (2017) (UK Supreme Court, non-binding) developed the doctrine of equivalents for patent infringement, which determines whether a product or process that does not fall strictly within the literal scope of a patent claim nonetheless infringes it by performing substantially the same function in substantially the same way to achieve substantially the same result. This doctrine has not yet been formally adopted by Nigerian courts but is increasingly relevant as Nigerian patent litigation becomes more technically sophisticated.

Footnotes

¹ Patents and Designs Act Cap P2 LFN 2004; originally enacted as Decree No. 60 of 1970, commenced 1 December 1971.

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

³ Section 1(2)(a), Patents and Designs Act Cap P2 LFN 2004.

⁴ Section 1(2)(a), Patents and Designs Act Cap P2 LFN 2004; Mondaq, ‘An Evaluation of the Requirements for Patentability: Novelty, Inventive Step and Industrial Application in Nigeria’ (May 2025), explaining that the state of the art encompasses everything made available to the public anywhere in the world before the filing date.

⁵ Section 1(2)(a) proviso, Patents and Designs Act Cap P2 LFN 2004; 1st Attorneys, ‘Patentability Requirements Under the Nigerian Patents and Designs Act’ (October 2024), confirming the 12-month grace period for inventor’s own prior disclosures.

⁶ Section 1(2)(b), Patents and Designs Act Cap P2 LFN 2004; Mondaq (n 4), explaining that an invention involves inventive activity if it is not obvious to a person skilled in the art having regard to the state of the art at the priority date.

⁷ Mondaq (n 4), identifying the two required characteristics of an inventive step: it must be “inventive” (the result of a creative idea) and a “step” (a noticeable, significant advance).

⁸ Section 1(2)(c), Patents and Designs Act Cap P2 LFN 2004.

⁹ Section 1(4), Patents and Designs Act Cap P2 LFN 2004; Resolution Law, ‘Patent Law and Right of a Patent in Nigeria’ (March 2026), listing the excluded subject matter under section 1(4).

¹⁰ Section 1(5), Patents and Designs Act Cap P2 LFN 2004.

¹¹ 1st Attorneys (n 5), stating explicitly: “The Nigerian patent system currently operates a ‘deposit system,’ meaning that patent applications undergo limited examination. The Registrar of Patents and Designs primarily checks for formal requirements, without rigorously assessing the novelty, inventive activity, or industrial applicability of the invention.”

¹² Article 27(1), Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed 15 April 1994.

¹³ Convention on Biological Diversity 1992, Article 15; Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, adopted October 2010, entered into force October 2014; Nigeria ratified the Nagoya Protocol in 2016.