Section 9 Patents and Designs Act 1971

Section 9 of the Patents and Designs Act 1971 is about Nullity of patent. It is under ‘Patents’ of the Act. It provides as follows:

(1) Subject to this section, on the application of any person (including a public officer
acting in the exercise of his functions) the court shall declare a patent null and void–
(a) if the subject of the patent is not patentable under section 1 of this Act; or

(b) if the description of the invention or the claim does not conform with subsection (2) of section 3 of this Act; or
(c) if for the same invention a patent has been granted in Nigeria as the result of a
prior application or an application benefiting from an earlier foreign priority.

(2) Subsection (1) of this section may apply to the whole of a patent or to any particular claim or claims made by it.

(3) For the purpose of disposing of an application under subsection (1) of this section, the court on the motion of the applicant or of its own motion may require the patentee of the relevant patent to produce in evidence any of the following–

(a) a list of any publications or earlier patents referred to in connection with a patent application made in respect of the same invention by the patentee to the
appropriate authority in any country outside Nigeria;

(b) any proceedings relating to the patent application in question or any patent
granted in pursuance of it; and
(c) any publications or patents mentioned in any report sent to the patentee by a
governmental or intergovernmental research or investigation institute.

(4) Where a declaration is made under subsection (1) of this section-
(a) the patent in question shall be deemed to have been null and void since the
date of its grant, so however that it shall not be necessary to repay royalties
paid by any licensee unless the court so orders; and

(b) the proper officer of the court shall inform the registrar, who shall register and
notify the declaration.

(5) The court –
(a) shall not make a declaration under subsection (l) of this section without first
giving the patentee an opportunity to be heard;

(b) in applying subsection (1) of this section, shall have regard only to the state of
affairs existing when the proceedings were instituted; and

(c) shall dismiss an application under subsection (l) of this section if the applicant
(not being a public officer) fails to satisfy the court that he has a material interest in making the application.

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