THE ROLE OF INDUSTRIAL PROPERTY PROTECTION IN ADVANCING TECHNOLOGICAL GROWTH AND DEVELOPMENT IN NIGERIA



Abstract
Nigeria is an emerging country and slowly taking its place in the comity of Nations. From Oil and Gas to Information and Communications Technology, the country is gradually carving a niche for itself as the next emerging destination after China for foreign direct investments. However the country still suffers from years of neglect in protection of investors rights partly because for many years it was a pariah. This paper seeks to proffer a frame work for growth and development in Nigeria through technology innovation and industrial property protection.


INTRODUCTION
With a population exceeding 120 million people, Nigeria represents by far the largest single market for the distribution goods and services in Africa. As a developing economy with a modest industrial base, her economy has remained largely dependent on imports. Consumer goods, machinery and industrial items are imported on a large scale from all over the world. Conversely, goods manufactured in Nigeria are exported, on a relatively small scale, to other countries, particularly within the West African Sub-region.[1]
Technology and knowledge have played an important role in economic growth of major world economies like the United Kingdom, United State of America and emerging economies like the BRIC countries i.e. Brazil, Russia, India and China.
Industrial property through globalization and technological innovation has come to reveal an enticing allure in corporate strategy affecting company ratings. Therefore, it is safe to say a country with higher rate of technological growth and improved industrial property protection would experience a higher standard of living than those of countries without much growth.
It should be noted that Industrial property protection significantly influences the appreciation in value and the accumulation in quantity of human capital and technological change. For example the growth in patent filing is associated with the growth of knowledge and patent-related statistics can act as an indicator of the strength or weakness of a country's economy.
The influence of Industrial Property protection can also be said to have been reflected in the increasing contribution in the high technology and knowledge-intensive industries. For instance there is now the inclination of firms to patent their inventions, sustain an aesthetic product design and maintain a high trademark value. However, this has increased worldwide which includes some developing countries.
The National Office of Industrial Property (NOIP) Act of 1979 set out requirements for companies to register any contract involving the right to use trademarks or patented inventions or covering the supply of any form of technical assistance. This includes technical expertise in the form of plans, diagrams, operating manuals or detailed engineering drawings; plant and machinery; and operating staff, managerial assistance or personnel training.
The National Office for Technology Acquisition and Promotion (NOTAP), successor to NOIP, approves management contracts and technical-service agreements covering training, research and the transfer of technical know-how for all industries, including manufacturing, engineering and agriculture. According to central-bank guidelines, a maximum of 5% of project cost is now allowed for consulting fees, but this is limited to projects with very high technology content for which indigenous expertise is not available. NOTAP reports that it licensed more than 3,000 patent-rights agreements as at March 2010 between Nigerian enterprises and foreign companies across all sectors. It registered a total of 1,237 technology transfer agreements in 1999–2009, the largest amount in the services sector, followed by solid mineral and chemical, and engineering sectors.[2]
According to Goldman Sachs a leading global investment bank, securities and investment management firm, Nigeria has been projected to be amongst the Next Eleven (N-11) countries the world should watch out for as having a high potential of becoming the world's largest economies along with the BRICs countries (Brazil, Russia, India and China).[3] This will rapidly be achieved if much weight is thrown to Industrial Property right protection and technological development.

INDUSTRIAL PROPERTY PROTECTION IN NIGERIA

Despite the seemingly intractable socio-political problems compounding Nigeria’s ascension to greatness, one can conveniently say that the past decades have brought about greater emphasis in establishing a self-sustaining economy through technological innovation and industrial property protection. One of the fallouts of this consciousness is the development of intellectual property law practice.[4]
Though there are no available statistics, there is ample evidence suggesting the fact that Intellectual Property practice is on the increase. It was perhaps in recognition of this development that as far back as in 1988 the then Attorney General of the Federation Justice Mohammed Bello directed the Nigerian Law Reform Commission to undertake a review and reform of Industrial Property Laws in Nigeria. The end result of this enterprise is the long awaited Industrial Property Act, which is now being re-tailored to comply with the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS).[5]
In comparing the practice of Intellectual Property in Nigeria with the practice in other countries of the world, it is imperative to note that Nigeria is still very much reliant on the English Laws. For instance the applicable Trademarks Act of 1965 in Nigeria was fashioned after the English Trademarks Act of 1938.
These laws have been overtaken by modern technological and economical advancement. Even the United Kingdom Trademarks Act over the years has been amended and is presently being regulated by the English Trademarks Act 1994.
As Nigeria advances industrially, there is the need to update our laws to address the present lacuna in our legislation. For instance, there should be recognition and incorporation of the registrability of smell, sound and geographical indication into our laws.[6]
Industrial Property is mainly about innovations and the protection of property rights mechanisms, through which Industrial Property is being administered in Nigeria and this may be through the Courts, Registry and Copyright Commission.
The Federal Government of Nigeria approved the registration of service marks with effect from 19th March 2007. However, this directive is yet to be published in the official gazette. It is worthy of note that service marks are being filed and in the last two publications of the Trademarks Journal, service marks were advertised.[7]
Another major and far reaching step taken by the Nigerian government in the area of Industrial Property development was the move by the Federal Government of Nigeria to establish Industrial Property Commission. The Industrial Property Commission, when it becomes fully operational, will ensure the protection of industrial property rights such as inventions, industrial design and trade marks, among other things[8].
The Minister of Commerce and Industry, Senator Jubril Martins-Kuye, stated this while delivering a speech to mark the World Intellectual Property Day in Abuja that “Innovative technologies are creating a global society. The ministry has a strategic plan of creating awareness in order to bring the message of intellectual property to the doorstep of every Nigerian... The Federal Government is committed to the establishment of an effective, viable and modern Industrial Property Commission and its immediate take-off.”
Also, the Director General, World Intellectual Property Organisation, Mr. Francis Gurry said, “The innovation process is about the introduction of new things and new ways of doing something such as new discoveries or improvement on the state of the art. This process transcends every facet of our lives and is the creation of the human mind which is quantified into valuable assets which are translated into wealth.”[9]
In a bid to enhance Industrial Property protection and technology innovation and transfer, NOTAP has established twenty-three (23) Intellectual Property and Technology Transfer Offices (IPTTOs) in some Nigerian Universities, Research Institutes and Polytechnics with the aim of ensuring that R&D activities are demand-driven, thereby facilitating their being exploited commercially and transformed into a marketable product or system. Each IPTTO has been adequately equipped to provide the requisite support structures for the research community where it is located and various capacity building programmes were carried out in collaboration with World Intellectual Property Organist ion (WIPO), Geneva.[10]

DEFINITION OF TERMS
A.    Intellectual Property
Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.[11]
Intellectual Property (IP), in the broad sense means the legal right which results from intellectual activity in the industrial, scientific, literary and artistic fields. Therefore, IP includes works of art or music, confidential information generated or maintained by academic and research centres, research findings, organisms, cells, viruses/phage’s, DNA sequences, explants, other biological materials, chemical compounds, crystallographic coordinates and even dissertations. Generally, IP can be classified into industrial property and copyrights. Industrial Property which is the major concern of this paper includes patents (a legal document granting an exclusive right to an invention), trade marks (legally protected signs for identifying certain goods or services), new variety of an organism (mainly of microorganisms and their products), utility model (regarded as “lesser patent” for inventions that do not have the full requirements for patent), industrial designs (embedded in industrial products and hand crafts), trade secrets/undisclosed information (confidential data or information that can only be disclosed or shared under the terms of a confidential agreement), know-how (actual human technical skills derived from working experience), geographical indicators (that tell buyers that a product is produced in a particular location that carries certain desirable characteristics) and repression of unfair competition.[12]

B.     Industrial Property
Industrial property refers to patents, trade marks, trade names, geographical indications (indications of source or appellations of origin), utility models, industrial designs, and the repression of unfair competition.[13]
Industrial Property is the creative work that has economic value and is protected by law[14]. Industrial property laws reward the creators of most types of industrial property (e.g. Patent, Trade mark and Industrial design), by preventing others from copying, performing, or distributing those works without permission.

C.     Trademark

A trademark is a distinctive name, sign or logo which uniquely identifies the source of goods and services. The primary aim of the Trademarks Law is to ensure that no-one uses a trademark of another which is similar or identical as to cause confusion in the course of trade in relation to the goods and / or services in which it is registered.
In other word, a trade mark may be defined as a word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others. The main purpose is to guarantee a product’s genuineness. In effect, the trade mark is the commercial substitute for one’s signature.

D.    Patent

A patent is a right granted to anyone who invents any new and useful process or fundamentally impresses an existing process. In order to protect an invention it must be novel or essentially better in some way than what was previously made, or a better way of making it.
In its simplest terms a patent is an agreement between an inventor and the public, where for a full public disclosure of the invention the inventor is granted the right for a fixed period of time to exclude others from making, using, or selling the defined invention. It is a limited monopoly designed not primarily to reward the inventor (this may or may not follow), but to encourage a public disclosure so that after the monopoly expires, the public is free to take unrestricted advantage of the invention.[15]
In my opinion and based on some further research that i have carried out i believe that the monopoly granted for a fixed time is designed primarily for two purposes:
a)      To reward the inventor for his invention; and
b)     To encourage franchising and public participation, which will lead to a reduction of price, availability of the product and a possible improvement of the product.

E.     Industrial Design

Industrial design is the ornamental or aesthetic aspect of a useful article which consists of the shape, pattern and / or colour of the article and must appeal to the eye. It could simply be said to be a combination of lines or colours or both and any three dimensional form. Furthermore, it may be defined as the registration of the outer appearance of an article (such as a table, cutlery and in a fabric design, a can or a bottle).

RELATIONSHIP AMONG INDUSTRIAL PROPERTY COMPONENTS

The various components of Industrial Property are independent on their own as mentioned earlier and situations may arise where an overlap may exist among them. For instance a single product may have more than one type of industrial property. Example, in a refrigerator,
v A trademark can exist herein, protecting the name and logo of the refrigerator's manufacturer e.g. thermocool, whirlpool, Frigidaire etc.
v The parts and processes of the refrigerator that keep food cold may be patented
v The Design of the refrigerator (the style and appearance of its drawers, shelves, handles, etc) can be protected by Industrial Design.
The main purpose of industrial property protection is to provide incentives for people to produce scientific and creative works that benefit society at large. Industrial property is usually protected by law from the moment of creation but in some circumstances it may require the creator to request a specific grant of rights from a government agency before they can be protected by law. One are in which all industrial property components share a similar characteristic is in the area of government protection for a limited number of years. Also all industrial property components have a form of registration that it must undergo to ascertain its ownership. The main essence of industrial property components is to boost economic growth and development.[16]

ECONOMIC BENEFITS OF INDUSTRIAL PROPERTY PROTECTION IN NIGERIA

The economic benefits of Industrial Property Protection are innumerable and over the years it has proven to be a viable tool for economic growth in developed countries. Some of these benefits are enumerated below.
v It has the potential causative to a country's efforts to attract Foreign Direct Investment (FDI) and provide the necessary conditions for transfer of technology.
v It facilitates transfer and promotion of technology and innovation such as patent licensing through an active use of patent information.
v Industrial property protection plays a catalytic role in inspiring research and development in a country.
v Trademarks are important component of the Industrial Property system which has strong influence on private investment and marketing decisions as they are intangible capital.
v The commercialization of Industrial Property is a significant stimulus to economic growth and development.
v Industrial property has also helped the living conditions of people with major emphasis on patent which deals mainly with inventions.

IMPEDIMENTS TO THE DEVELOPMENT OF INDUSTRIAL PROPERTY PROTECTION IN NIGERIA

Notwithstanding the gradual growth witnessed in respect to the protection of Industrial Property, there are still some challenges faced in this field. These include:
v INADEQUATE SKILLS AND PERSONNEL
The administration of Industrial Property Protection in Sub-Sahara Africa is incapacitated by inadequate skills. Persons involved in its administration are usually not experts. For instance in Nigeria, patent examiners are not experts in the field of science and technology, therefore the grant of a patent is as to form only, there is no substantive examination.
v INFRASTRUCTURE AND INFORMATION TECHNOLOGY
The infrastructure for operation of Industrial Property in Nigeria is still largely undeveloped. Information Technology is also in the early level of development thus not encouraging proper research by Intellectual Property experts, students and scholars. Filing of applications is always slow; the process of grant of could take years due to the limited infrastructural facilities at the Trade mark and Patent Registries. These infrastructure deficiencies have not encouraged business development in Nigeria with bottlenecks in passage of goods and services between borders in the region.
v INADEQUACY OF STATUTORY PROVISIONS

Under Nigerian law[17], eligibility for registration of industrial property, especially Trademark is more restrictive than the position in other jurisdictions. Registerable marks under Nigerian law are presently defined only in relation to goods. This definition is detrimental to service-oriented businesses.[18] In other jurisdictions, like the United Kingdom, Trademark is defined as any sign capable of distinguishing goods and services. Under Nigerian law, Trademark is defined thus:
Trademark means, except in relation to a certification trademark, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of Trade between the goods and some person having the right either as a proprietor or registered user to use the mark whether with or without any indication of the identity of that person and means in relation to a certification trademark a mark registered or deemed to have been registered under Section 43 of this Act.”

In AKESAN (NIG.) LTD  V  UBN LTD. Suit No. FHC/L/95/81 (unreported) it was held inter alia that the Plaintiff’s registration of a white stallion for electrical goods was not infringed by the defendant’s use of a similar mark for its banking services. It is possible that if service marks were registrable under Nigerian law, the defendant would have registered its logo as a service mark.
There is thus a need to expand the meaning of a mark to include symbols, pseudonyms, presentation or packaging of goods and services and shapes. Such an expansion would give applicants for Trademark registration broader protection. Some of these inadequacies could be rectified by some International Laws such as the Paris Convention for the Protection of Industrial Property 1883 as revised in Lisbon in 1953, which allows for registration of service marks. However, because of the provision of Section 12(1) of the 1999 Constitution, which provides that “no treaty between the Federation and any other Country shall have the force of Law except to the extent to which such treaty has been enacted into law by the National Assembly”, international law or convention cannot be invoked to fill the lacunae in our law.
Furthermore non-registration of a mark under Nigerian Law leaves the mark unprotected. This problem may be solved by inserting a provision for the recognition of “well known marks” which will enjoy a measure of protection independent of registration.[19]
v DEVELOPMENT IN LAW
It is quite disappointing that after decades of independence most countries in the sub-Sahara Africa have not made any significant change in their Intellectual Property laws, the laws have remained outdated.
Some of the major problems facing development in Intellectual Property law in Nigeria are specifically enumerated below.
v Lack of awareness
v Passive involvement of Government in Intellectual Property Legislations
v Most innovations are not registered
v Counterfeiting Act performed by non owners of Intellectual Property Rights
v Non compliance with Intellectual Property Treaties such as TRIPS, PCT (Patent Co-operation Treaty). According to the provision of Section 12 of the Constitution of Federal Republic of Nigeria Which states that:
"No Treaty between the federation and any other country shall have the face of law except to the extent to which such treaty has been enacted into law by the National assembly".
The former Minister of Commerce and Industry Chief Achike Udenwa said that in spite of the long existence of the department, the Industrial Property system had not developed much in Nigeria. "The Trademark, Patent and Design Department has not been able to meet with the fast pace of technological development in the world and because of this, Nigeria is being left behind in the global arena of fast developing Industrial Property systems."
v ADMINISTRATIVE PROBLEMS

The administration of trademarks is not without problems. Some of these problems include:
v Files are sometimes lost or misplaced in the Registry.
v Some of the staff of the registry are unskilled and untrained.
v The facilities in the Registry are poor.
v The Trademarks journal is not published regularly.
v Again there is need to computerize the Trademarks Registry and establish a network that will co-ordinate the activities of the associated ministries that impact upon its operations.
However, a joint action by intellectual property practitioners in Nigeria have resulted in the formation of a pressure group aimed at ensuring the improvement of services rendered by the Trademarks Registry. In recent times, the publication of the Journal has become more frequent. Also, a stakeholders forum, aimed at providing the Registry with an opportunity of discussing these problems and working out a joint solution for them is in place. It is hoped that the dividends from these efforts will be felt in the not too distant future.[20]

OBSERVATIONS AND RECOMMENDATIONS

Having examined the challenges encountered by Intellectual Property in Nigeria it is paramount to recommend a solution for awareness and development of Intellectual Property in Nigeria in other to withstand other countries and be on the same pedestal with them.
For proper economic, social and cultural development to occur, Intellectual Property must play a fundamental role. The way forward includes:
v There is the need to update our laws and incorporate the protection of Industrial Property rights on smell and sound as already practiced in the major world economies. It is indeed a laudable achievement that service marks are now being registrable in Nigeria, however in order to support this accomplishment there is the need to publish same in the official gazette.
v Improvements on awareness as to the importance of Industrial Property in Nigeria. Through advertisement, seminars and symposium in Technical schools, Institution of higher learning, companies, and Industries where most innovations are carried out.
v Financing of university education on Intellectual property and provision of Information Technology facilities to aid learning culture, research and application of technical know-how.
v Also, it is only through effective administration and enforcement of industrial property rights that innovators and investors are assured of their investments, and it would spur research and development.
v Continuous education for registry personnel and Intensive and regular training of Intellectual Property personnel and practitioners to keep abreast of current developments in contemporary Intellectual Property Rights. Appointment of IP experts and professionals into offices and parastatals for the implementation of policies on Industrial Property Rights.
v Improvement on Government Policies especially in commercialization of invention where financial difficulty is encountered.
v A thorough review of Patent and Trademark laws which are archaic and a lot of deficiencies are contained, thereby an adequate legal infrastructure and progressive policies on protection of Industrial Property would be relevant.
v Provision and maintenance of infrastructure to allow easy access to information and development of Industrial Property through transfer of technology to the region since Industrial Property Rights need to be worked in the domiciled country for listing in the register or archives of the ministry.
v Ratification of Relevant Treaties. The need to domesticate the relevant treaties into our laws as a treaty can not be enforced without it being ratified. There are several intellectual property (patents) treaties that would have made changes in our national laws, but since they are not ratified there is little contribution such can make.
v The introduction and adequate implementation of collective system of royalty payment and collection.
v As was rightly pointed out by the former Minister of Commerce and Industry, Chief Achike Udenwa, there is need for the government to look into the establishment of an effective and autonomous industrial property commission.
v The role of collecting societies in Nigeria is fast becoming significant and an example of this is the licensing of traders in Alaba International Market Lagos, to produce and distribute albums belonging to the members of those societies. In combating piracy, the Nigerian government also introduced through the Nigerian Copyright Commission (NCC), the Copyright (Optical Discs Plants) Regulations 2006 which mandates all disc manufacturing companies in Nigeria to register with the NCC and meet required conditions for operation.

CONCLUSION
The importance of a very protective Industrial Property regime can not be over emphasized. Countries that had their economies developed are mainly countries that developed optimally their industrial property regimes. In Nigeria, it is as good as there isn’t a proper industrial property regime, therefore, overdependence on export and ofcourse the absence of production. There is no doubt that the catalyst for technological growth and development is indeed a powerful industrial property regime. For Nigeria to therefore achieve its vision 20:20-20, it must develop it industrial property laws to its optimal level.


[1] An international conference styled: TOWARDS THE REGIONAL DEVELOPMNT OF INTELLECTUAL PROPERTY IN AFRICA: “THE TRIPS AGREEMENT AND NEW ISSUES IN THE DIGITAL AGE” held at the ECOWAS Secretariat, Abuja from 4th-6th April 2001. Organized by the United States Department of Commerce, the Economic Community of West African States (ECOWAS), the African Regional Intellectual Property Association (ARIPO) and the Intellectual Property Law Association of Nigeria (IPLAN).
[2] Economist Group Business. Nigeria: Licensing and Intellectual Property. The Economist Intelligence Unit Limited. (2010). Print http://www.eiu.com
[3] Jackson, Etti. Nigeria: Intellectual Property: A Tool For Economic Growth in Nigeria. (2009). Print. For more information visit www.mondaq.com
[4] Stillwaters Law Firm (2006). Print. For more information visit www.stillwaterslaw.com
[5] Ibid.
[6] Jackson, Etti & Edu. Victoria Island Lagos.
[7] Ibid.
[8] Ibid
[9] Emeka, E., Federal Government to Establish Industrial Property Commission. PUNCH, (Sunday 2nd May, 2010). Print. See also http://groups.yahro.com; http://news2.onlinenugeria.com 
[10] Victor, M.I. & Christopher, U.O. A Review of the Nigerian System of Intellectual Property. In: CAS-IP NPI. (2009). Institutionalization of Intellectual Property Management: Case Studies from four Agricultural Research Institutions in Developing Countries. CAS-IP, Rome, Italy. (2009). Print
[11] Boadi, R., The Role of Intellectual Property Rights in Biotechnology Innovation: National and International Comparisons. McGill University’s Centre for Intellectual Property Policy (CIPP) & The European University Institute. Florence, Italy. (2005). Print
[12] Ukpabi, J.U. Potential of protected local institutional innovations in catalyzing Nigerian Agro-Industrial Development. Journal of Agricultural Biotechnology and Sustainable Development (JABSD). Vol. 1(3) (2009) pp. 062 - 068,. Print. www.academicjournals.org
[13] www.notap.gov.ng visited 23rd November, 2010. 8.50 PM.
[14] Trade mark is protected by Trade Marks Act, Cap. T 13, Laws of the Federation of Nigeria, 2004. While Patent and Industrial design is governed by Patent and Design Act, Cap. 344. Laws of the Federation of Nigeria, 2004.

[15] Earl, W.K. & Jack, L.L.  An Intellectual Property Law Primer. No. 7-11. 2nd edition. (1982). Print.
[16] Kamil, I., Intellectual Property: A power tool for economic growth-overview. World intellectual property organization. 2nd edition. (2003). Print.
[17] Trademarks Act, Cap. T13 Laws of the Federation of Nigeria, 2004.
[18] Udemgba, S., Some Bottlenecks to Effective Enforcement of Intellectual Property Rights in Nigeria. “n d”. For more information visit: www.foakinrele.com
[19] Ibid
[20] Udemgba, S. Op cit no. 18.
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