Nigeria election saga finally ends in the public interest -- we hope

Late last year Afro Leo's friend the IPKat posted this item from Kingsley Ebguonu on the battle between Bedding Holdings and Independent National Electoral Commission (INEC) over Bedding's action in November 2010 against INEC and the other defendants, asserting that it had exclusive patent rights to produce Electronic Collapsible Transparent Ballot Boxes (ECTBB), as well as being the patentee of the Proof of Address System/Scheme (PASS), used for the collation and collection of the names, age, gender, address, fingerprint, geographical description and location of various places in the country, including the biodata of every person resident in Nigeria. Controversially, an interim injunction was granted which arguably would have had the effect of paralysing the Nigerian elections.

Latest news from Kingsley is as follows:

After hearing both parties in the suit, Justice Ibrahim Auta finally lifted his earlier injunction granted against INEC on 3 December 2010 commenting that: “the 2011 general election is of utmost national importance and it is in the public interest that the court does not disrupt the process”. Having reached this conclusion, the court however fixed the 27 and 28 January 2011 for substantive hearing. Due to lack of details in recent news articles and scant case reporting, it is difficult to judge what exactly happened thereafter and the current status of this case.

The Court noted that the claimant had proved that it is the true proprietor of the patent in suit, while the defendant(s) inadequately mounted a defence (here I think the court was most likely referring to an invalidity defence). Nonetheless, the Court ultimately reached its decision on the unequal consequential harm to both parties and correctly decided that it was in the public interest to discharge the injunction.

One fails to understand how the Court could reach this conclusion or realisation (in this particular circumstance) so late when, arguably, it should have been aware of the ultimate effect of its order (disrupting the 2011 general elections) on first hearing.

I think it is safe and reasonable to say that a Court doesn’t need bundle of papers (evidence) to be persuaded that restraining INEC would disrupt the 2011 election in Nigeria and, in fact, could jeopardise the stability of the nation.

Browsing through various online posts, it appears that the court was trying save itself from being held responsible for contributing to the disruption of the 2011 general election. Unfortunately, this case has now attracted the attention of the general public to well-known issues associated with politics, judiciary and strangely, IP law and practice in Nigeria.

As for the defendant(s) and they way they handled this case, I did not pick out anything substantial from their defence other than mere rhetoric that the claimant was not the proprietor of the IP rights in suit as claimed, or that any certificate of patent(s) put before the Court is more or less fake. I also did not pick out any argument towards “government use or compulsory licence” for patented articles/products.

This case also draws our attention to issues surrounding product patent versus process patent regimes and particular to this case, there may be patentability arguments in substantive suit in respect of whether this is product-by-process patent claim.

They say “no news is good news”.  This may not be good news for some but, for all IP enthusiasts reading this, it is good to see that IP is proving relevant and important in developing countries. This is therefore a wake-up call for policymakers to neglect IP at their own risk.

Some of my questions are:
1. Was it the case that the Court was indeed misled by the applicant in the motion ex parte as to the “urgency” at stake in its claim?
2. Is this just another case of the “state of affairs” or habit; i.e.  taking advantage of the political situation in Nigeria with plethora of lawsuits? or
3. Is this simply sheer incompliance with established principles of law?
4. Can one ever envisage this type of case in the UK?
5. In almost all circumstances in IP litigation, do you need evidence to show an overriding public interest?
6. How do you go about gathering such evidence (particularly in this case, is it sufficient to expect the Court to use common sense?)
7. How often do we hear of public interest and IPRs in circumstances outside the public health and access to medicine discourse?
8. From what the claimant have exposed in its patent, is this a case of product-by-process claim and if so, how easy or difficult are these to defend where one is accused of infringement?"