RESOLVING THE CONUNDRUN IN INVENTIVE ACTIVITY REQUIREMENT IN PATENT APPLICATION

Abstract

Patent is granted for products or processes that show advancement in technology and part of the advancement is that there must be a noticeable improvement between prior art and the invention sought to be patented. Though the Nigerian Patent Act states that inventive activity is a requirement for patent grant, but what are the considerations thereof and who determines what amounts to inventive activity in comparison with prior art. How does the court interpret the inventive activity requirement and is the extant provision of the act adequate in proffering structure for determination of inventive activity. This work is an analysis of the inventive activity requirement, the role of the court in determining what amounts to inventive activity criteria and a discourse on the steps taken in other jurisdictions in determining the difference between prior art and the claimed invention as justification for patent grant. In the course of this research, it was discovered that the Nigerian Act has limitations as to the determinant factors of the inventive activity requirement. Recommendations are suggested in amending the current Patent Act to regulate the technicalities in determining ‘inventive activity’ and ensure the requirement is put in the right perspective.