Patenting in Biotechnology: An Analysis of the Three Tests of Patentability under the Nigerian Patent Law

Abstract

Biotechnology has the potential to address some of the problems, including food insecurity and
malnutrition, the emergence and re-emergence of infectious diseases, and climate change,
besetting developing countries such as Nigeria. However, it poses a significant challenge to the
existing patent system in Nigeria due to its inherent connection to naturally occurring substances.
Therefore, this paper provides a legal analysis of the applicability of the patent standard tests of
novelty, inventiveness and industrial application to biotechnology in Nigeria. The analysis draws
on the interpretations of similar provisions in the European Union, the United States and the
United Kingdom. The primary purpose is to identify and clarify possible issues that could arise in
the bid to apply relevant provisions of the existing patent law to biotechnological inventions in
Nigeria. The paper found that biotechnological inventions and innovations have proven
challenging to the requirements of novelty, inventiveness and industrial applicability under the
globalised patent standards. This is because patent laws evolved primarily in response to the
development of machines and chemical processes, so they do not necessarily contemplate the
peculiarities of biotechnological inventions and innovations. It is recommended that for clarity,
there is a need for Nigeria to formulate principles that would guide the application of the patent
law to biotechnology as obtained in other jurisdictions, bearing in mind the possible implications
of biotechnology patents on public health, food security, traditional knowledge and the
environment among other factors.