Tuesday, 10 July 2012
Bedding Holdings v INEC & others: the latest development and the moral discourse
At the least, learn one or two unique features of litigation in this jurisdiction: it can be haphazard; so expect anything, but it can also be frustratingly protracted. Readers can remember when this Leo first broke the news on the case of Bedding Holdings v INEC and others (a case where patent rights nearly halted the 2011 elections in Nigeria) here and his subsequent pieces (when the court cleared the way for INEC to conduct the elections using the then apparent patented boxes) here, here and here.
Recent patent decision
On 5 June 2012, a judgment (Suit No. FHC/ABJ/CS/82/11) was handed down by Hon. Justice A. Bello in the substantive suit –this time, the Registrar of Patent was joined as a defendant- which ruled in favour of the claimant on all grounds including an injunction. This judgment was kindly analysed here on Afro IP by Chukwuyere Izuogu; but by way of summary, it declared and ordered as follows:
(a) That the claimant’s patent and registered design rights granted on 12 January 1998 and 27 November, 2006 are valid and subsisting.
(b) That the above rights were prior art; therefore, the subsequent patent and design rights granted by the Registrar to the 3rd and 4th defendant on 14 October 2010 were contrary to the provisions of the Patent and Designs Act (PDA) (NB: may not be up-to-date, as stated below) and therefore not valid [Basic principles of the patent system]
(c) That the Registrar erroneously granted patent and design rights to the 2nd defendant; therefore, those rights are null and void [well, at least Afro Leo knows that no IP office is infallible]
(d) That any dealing whatsoever, by the defendants -for example, INEC- in relation to the product in dispute, without the claimant’s consent is unconstitutional, illegal, unlawful and therefore, null and void. [Aha, so this is the sticking point that is silently worrying most politicians and INEC in particular, at the moment in Nigeria, says Afro Leo]
(e) A perpetual injunction restraining the Registrar from granting subsequent patent and/or design rights which would infringe on the claimant’s valid and existing rights [Afro Leo is thinking: in other words, the court is enjoining the IP office to do its job properly – perhaps,
good amending the PDA to require examination of patent
applications might be a starting point]
Reaction in the media
It was not surprising that many, including lawyers and politicians, began to analyse the judgment. Due to these concerns including the ones raised by the media (see here, here and here), INEC issued a press release which was also reported here and here, stating its own position on the judgment.
According to the release, INEC refuted media claims that the judgment nullified the elections in 2011 arguing that the patented boxes referred to in the judgment were not the ones used in 2011 but also further stated that it had no intention of using those boxes in the upcoming election. [Basically, INEC intends to obey the judgment; but it is also saying that the patented boxes in dispute were not actually used in 2011, according to the statement, there are other boxes out there (readers can learn more on this from the statement). Afro Leo would like to know why the defendants had to go to court to discharge the interim injunction?(see above)]
Contempt of Court
Today, this Leo is very much puzzled [not really, says Afro Leo] to learn yet again, according to news reports here and here that the same court that reached the decision on 5 June 2012 has now issued “Form 48” - a Notice of Consequences of Disobedience of Court order- against INEC including its chairman, and the Registrar of Patent, Federal Ministry of Commerce and Trade, following indications that INEC is planning to use the infringing boxes in an upcoming election.
So what would the outcome of this latest development be? Well, this Leo can say for a fact that he has no idea where this is going. He can only try his best not to get sucked into this legal but potentially political quagmire, by focusing on all things IP. Therefore, it is fair to comment that this is yet another great news for IP in Nigeria because it doesn't just show the court's increasing willingness to assist IPRs owners, but also that this action will serve towards increasing IP awareness.
Afro Leo kindly urges any legal practitioner in Nigeria reading this to share his or her thoughts and/or information gathered on the ground on this.
Morality of intellectual property rights (IPRs)?
Those opposed to the notion of IPRs or the powers afforded to it, may well see this - whether or not, it eventually affects the democratic process - as yet another reference point as to why IP in general or 'strict' IP enforcement, is not good for developing countries. However, as this Leo understands – according to the only available source which he found online and which he warns may not be up-to-date [This is where
website for the Nigerian IP office website would have helped, only if you could find a copy of the legislation under Laws & Policies, says Afro Leo]– there are provisions in the PDA which
allow government agencies or ministers to use any article protected by a patent
if it is in the public interest to do so (see
Part II, sections 15 to 23). Why these provisions were not invoked, or to be on a safe
side, why a license was not obtained - apparently, like in 2003 - is anyone’s guess. Fortunately, we also learned last year, that the High Court – in the
injunctive relief proceedings - ruled that the public interest (the conduct
of free and fair elections in 2011) overweighed intellectual property rights – damages being appropriate remedy. Therefore, IPRs do have their limitations and there are other flexibilities too; whether these flexibilities and/or limitations go far enough is for academic discourse.
The question then becomes: should a subsequent court hearing a suit which challenges the validity of the 2011 elections place a IPRs (private property) above political and social stability in Nigeria?
Your comments are welcomed.