Software can also be protected under patent
law in Nigeria, if it satisfies the basic requirements of patentability. Unlike
copyright which protects software codes, patent protects the invention
including the method and processes used in developing the software, once they
have been fixed in a tangible format. Not all software is eligible for patent
protection. Software is eligible for patent protection, if it is new, involves
an inventive step that is not obvious to people knowledgeable in the field and is
capable of industrial application. It is also eligible for protection if it consists
of an improvement on previously patented software and it is also new, involves
an inventive step and capable of industrial application.

To be eligible for
patent protection, a software programme must satisfy the three major
patentability requirements. It is new if it has not been made available to the
public prior to the date of filing of the patent application. It would not be deemed to have been made available to the public if the
developer had exhibited it in an official or officially recognized
international exhibition, six months preceding the filing of the patent
application. However, where it exceeds six months, it would be deemed to have
been made available to the public. It must involve an inventive step which must
not be obvious to a person in the same field either as to the method, the
application, the combination of methods, or the product which it concerns, or
as to the industrial result it produces; and it must be capable of being used in any kind of industry including
agriculture.

An application for grant of
patent is filed at the Patents and Designs Registry. The Patents and Designs
Act stipulates that the application shall contain the applicant’s full name and
address, a description of the relevant invention with any appropriate plans and
drawings including a claim or claims of the software. The application shall be accompanied by the prescribed fees and where
appropriate, a declaration signed by the true inventor requesting that he be
mentioned as such in the patent; and a signed power of attorney if the
application is made by an agent. The application is examined by the registrar merely to ascertain formal
compliance and once the application satisfies the statutory requirements the registrar
is likely to grant the patent without enquiries as to its novelty,
inventiveness and industrial applicability or whether the specification
sufficiently discloses the invention. This is because Nigeria does not have a functioning examination system. A
patent is granted for 20 years and at the risk of the patentee without guarantee as to their validity. During the period of 20 years, the inventor maintains exclusive right to use,
assign or license the software, and can prevent the recreation and imitation of
the software application. Issued patents are subject to an annual renewal
obligation in the form of annuity payments to ensure their continued validity
over the lifespan of the patent.

Patentability
of software is highly debated in Nigeria and copyright is presumed to be the
most suitable form of protection due to the broad protection which it affords. In
the United States, software is patentable if it is any new and useful process,
machine, manufacture or composition of matter, or any new and useful
improvement. In the United Kingdom, patent protection may be granted for
software that is new, inventive and can be used in industry. Although the UK Patents Act 1977 excludes computer programmes from patent
protection, patent may be granted to computer programmes or software if after
assessment of the novel aspect, it is found to make a technical contribution to
what is already known. In
China, software programmes are patentable if they solve a technical problem,
adopts a technical measure and achieves a technical effect.

In addition to copyright protection, patent protection is
recommended for software as copyright only
protects the literal expression of software and does not protect the ideas
underlying the software which often have considerable commercial value. Software is one of the most common form of technology tool
widely used to augment business processes today. They require a more dependable
form of protection to enable developers enjoy the benefits of their
inventiveness and to promote creativity in the industry.

4.           
Trademark
Protection

Although a trademark cannot protect software,
it may be used to protect and secure exclusive right to the software’s brand
name, logo and slogan, i.e., software titles. Exclusive
right to a trademark can be acquired either by use in Nigeria and/or
registration of the mark at the Nigerian Trade Marks Registry. Upon
registration, the proprietor’s right in a trademark subsists for 7 years and is subject
to renewals at 14 year intervals. A trademark gives the proprietor exclusive
right to use the mark in connection with the software and enables users to distinguish
the inventor’s software from other software available in the market. It also promotes
the brand and may prevent third parties from marketing their software under a
confusingly similar name.Software
titles are registrable as trademarks in Nigeria under class 9 and/or class 42 of
the international classification of goods and services. It may
be registered under both or any of the classes based on whether the company or
business utilizes
the brand in the sale of products and/or provision of services. Class 9 is adequate for brands engaged in sale of computer
programs and software regardless of recording media or means of dissemination
and class 42 is adequate for brands involved in the
provision of designs and development of computer hardware and software
services including services provided by computer programmers.

5.    Trade Secrets Protection

Software
programmes may also be protected as trade secret by preserving confidential
information, processes or codes of a software which have commercial value and which
accords the owner a competitive advantage over competitors in the market. In
addition to copyright and trademark protection, this mode of protection is recommended
for software that is not eligible for patent protection in Nigeria, or as a
commercial strategy to withhold related proprietary data for the application of
the software.

Trade
secret protection is not a statutorily recognized right in Nigeria; however, it
is recognized and enforceable under the common law. Owners of trade secrets in
software have to take reasonable measures to maintain their secrecy. These
measures include signing non-disclosure agreements, restraining employees’ access
to it and taking steps toward preventing access to the public. Trade secret in
software can be maintained indefinitely as long as their secrecy is preserved
and prevented from becoming public knowledge.

6.           
Conclusion

Copyright,
patents, trademarks and trade secrets law protect different aspects of software
rights. Copyright protects software codes, patent protects the software
invention including methods and processes, and trademark protects the brand
name and logo under which these products are sold, while trade secrets protect related
know-how, including other confidential information that gives that owner a
competitive advantage in the market. These modes of protection would give an
inventor exclusive rights to use its codes and software including its marketing
brand, and prevent unlawful exploitation by third parties. The various modes of
protections may be used concurrently or selected based on the uniqueness of the
software and intended business objectives. For maximum legal protection and
benefit, it is recommended that an inventor utilizes more than one form of
protection. Inventors require adequate legal support to determine the best mode
of protection suitable for their software and prior discussions with an IP
lawyer is highly recommended.  

Source: https://bit.ly/2GqLQUS 

For further information on this article and area of law,
please contact Bisola
Scott at:

S. P. A. Ajibade & Co., Lagos 

Telephone: +234.1.270.3009; +234.1.460.5091

Fax: +234 1 4605092

Email: [email protected]

Vist
our website: www.spaajibade.com