{"id":3610,"date":"2024-10-24T09:23:52","date_gmt":"2024-10-24T08:23:52","guid":{"rendered":"https:\/\/1stattorneys.com\/articles\/?p=3610"},"modified":"2024-10-24T09:23:52","modified_gmt":"2024-10-24T08:23:52","slug":"minimum-time-for-granting-a-compulsory-license-in-nigeria-under-the-nigerian-patents-and-designs-act","status":"publish","type":"post","link":"https:\/\/1stattorneys.ng\/articles\/2024\/10\/24\/minimum-time-for-granting-a-compulsory-license-in-nigeria-under-the-nigerian-patents-and-designs-act\/","title":{"rendered":"Minimum Time for Granting a Compulsory License in Nigeria Under the Nigerian Patents and Designs Act"},"content":{"rendered":"\t\t
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Under the Nigerian Patents and Designs Act (PDA), a compulsory license can be granted to a third party without the consent of the patent holder in certain circumstances. The minimum time period<\/strong> after the filing of a patent application before a person can apply for a compulsory license is:<\/p>

  • Four years from the date of filing the patent application,<\/strong> or<\/li>
  • Three years from the date the patent was granted,<\/strong><\/li><\/ul>

    whichever period expires last.<\/p>

    However, even after this minimum period, the applicant must demonstrate to the court that one or more of the following conditions exist to justify the grant of a compulsory license:<\/p>

    • The patented invention, although capable of being worked in Nigeria, is not being worked.<\/strong> This could mean the invention is not being manufactured or used in the country.<\/li>
    • The existing degree of working of the invention in Nigeria does not meet the demand for the product on reasonable terms.<\/strong> In other words, the current production or use of the invention is insufficient to satisfy the market demand at a reasonable price and availability.<\/li>
    • The working of the invention in Nigeria is being hindered or prevented by the importation of the patented article.<\/strong> This suggests that the importation of the patented product is suppressing the local production or use of the invention.<\/li>
    • The patentee’s refusal to grant licenses on reasonable terms is unfairly and substantially prejudicing the establishment or development of industrial or commercial activities in Nigeria.<\/strong> This implies that the patentee’s unwillingness to license the invention is hindering the growth of relevant industries or businesses in the country.<\/li><\/ul>

      Furthermore, the applicant for a compulsory license must also prove to the court that:<\/p>

      • They have made efforts to obtain a contractual license from the patentee but were unsuccessful in doing so within a reasonable time and on reasonable terms.<\/li>
      • They have the capacity and resources to work the invention sufficiently to address the shortcomings that led to their application.<\/li><\/ul>

        It’s crucial to understand that the court ultimately decides whether to grant a compulsory license<\/strong>, considering the arguments presented by both the applicant and the patentee. The patentee has the right to challenge the application and provide justification for their actions related to the patent. The court will evaluate all the evidence and determine if the conditions for granting a compulsory license are met and whether the patentee’s actions are justifiable.<\/p>

        It’s also important to note that even if a compulsory license is granted, the licensee is not exempt from paying royalties or other forms of compensation to the patentee<\/strong>, as stipulated by the TRIPs Agreement. The PDA does not specifically address this aspect, which could be a point of contention in such cases.<\/p>

        \u00a0<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

        Under the Nigerian Patents and Designs Act (PDA), a compulsory license can be granted to a third party without the consent of the patent holder in certain circumstances. The minimum… <\/p>\n","protected":false},"author":1,"featured_media":3613,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"pagelayer_contact_templates":[],"_pagelayer_content":"","footnotes":""},"categories":[25,21],"tags":[],"class_list":["post-3610","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-general","category-intellectual-property"],"_links":{"self":[{"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/posts\/3610","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/comments?post=3610"}],"version-history":[{"count":0,"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/posts\/3610\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/media\/3613"}],"wp:attachment":[{"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/media?parent=3610"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/categories?post=3610"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/1stattorneys.ng\/articles\/wp-json\/wp\/v2\/tags?post=3610"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}