No longer business as usual” is the new cliché’. The novel Coronavirus 2019 pandemic (“COVID-19”) has changed the way we live and work. This change presents a new set of challenges that place a demand on our capacity for innovation and provides new growth opportunities. These innovations, while solving the health, social, and business problems induced by the pandemic, also have the potential to produce substantial economic benefits for the innovators that hold the intellectual property rights (“IP”).

 Nigerian innovators are proving equal to the task. In response to the need for rapid testing in the country, Dr. Ola Brown, Founder of Flying Doctor Investment Group, recently launched a special walk-in COVID-19 testing booth to expand access to testing while reducing the risk of infection to healthcare workers. The innovation has the potential to significantly reduce the use of Personal Protective Equipment (“PPE”), which is quite expensive and in short supply. At Ahmadu Bello University, a 20-year-old mechanical engineering student, Usman Dalhatu, built a local ventilator. The young innovator has since transformed the local ventilator into a portable ultra-modern E-vent automatic ventilator. Mr. Tunde Okoya, the Managing Director of Lange and Grant Commodities, also developed a prototype ventilator which is now set to be produced in large quantities and deployed to several African markets.

Inventions are protected in Nigeria by the Patents and Designs Act (“PDA”). The law grants to an inventor the exclusive right to exploit his invention for a fixed period of twenty (“20”) years in exchange for the disclosure of information about the invention for the benefit of the public. This right is referred to as “patent”. For an invention to qualify for protection under the PDA, it must satisfy the dual conditions of novelty and capability of industrial application. While the latter may be easily met, satisfying the former often proves difficult. For an invention to be considered novel, it must have resulted from inventive activity. The law reckons that an invention results from inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns or as to the industrial result it produces. Where the invention, fails to meet these criteria, it is considered unworthy of protection and open to free exploitation. These strict criteria inadvertently exclude valuable inventions from protection.

Utility models can solve this dilemma. According to the World Intellectual Property Organisation (“WIPO”), a “utility model” is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention without his authorisation, for a limited period. Utility models protect innovations or discoveries which would otherwise not be protected under the standard patent law as they fall short of the inventive step or novelty requirement for a patent. Though yet to be recognised in Nigeria, utility models have already been embraced by the IP system of many African countries, including Egypt, Senegal, and Rwanda, as well as the two regional bodies, ARIPO (Anglophone countries) and OAPI (Francophone countries). Aside from the benefit of encouraging local innovation in manufacturing and other sectors, a utility model law will prevent free-riding of local inventions by predatory firms who have expended no effort or investment in respect of these innovations.