Apr 25, 2018

IP ABC: Patenting Your App/Software | Infusion Lawyers

Question of the Week (1) 
We are a tech company in Nigeria. We have just finished building an appfirst of its kind in Africa. Because we have big plans for this app, we need to protect it. Since the app has an innovative and intuitive technology, we want patent protection. How do we go about getting a patent in Nigeria?

You want to patent your new and intuitive app in Nigeria.

In Nigeriaand most countriesapps are eligible for copyright protection only, not patent.

This is because apps are software programs and software programs are categorized as literary works under the Nigerian Copyright Act. They are literary works because software programs are written in computer language (whether source code or object code). The fact of their being written is what makes them literary, thus their functionalities are immaterial.

The implication of the position above is that your company cannot successfully apply for patent at the Trademarks, Patents & Designs Registry in Nigeria. Patents are granted to protect new scientific and technological inventions only, not software programs. So while your app may have "innovative and intuitive" capabilities, the Patents and Designs Act—which applies to inventions in Nigeria—does not recognize software programs as subjects of patent.

Note that the only way your app can be eligible for patent in Nigeria is if the app has any functional or technical features that is new and inventive since patent protects technical or functional features in a product or process, not just any product or process.

But if your app does not contain this feature, it cannot be patented. At best, it can only be copyrighted since software is a 'literary work' by virtue of being written or expressed in computer language. (Copyright is not concerned with the functional or technical feature of your app, if it contains any functional and technical features.)

Patenting Your Software outside Nigeria

Because you have "big plans" for your app, you may consider patenting your app in other jurisdictions, particularly the marketplaces you wish to expand to. In Europe and the United States for instance, software patents are legally acceptable, but subject to certain requirements. In Europe, the European Patent Office (EPO) treat software programs as computer-implemented inventions and requires that to qualify for patent, the software program or computer-generated invention must solve a technical problem in a novel and non-obvious manner. In the US, patent law does not permit granting software patent that contains abstract ideas.

To help your company navigate this typically technical software-patent matter, consult an IP lawyer or law firm.

Best wishes

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