COVID-19: The impact on IP law and practice in Nigeria

Although the first case of COVID-19 was confirmed on February 27, it was not until March 29 that the Federal Government of Nigeria ordered a lockdown in Lagos, Abuja and Ogun, effective from March 30. The government has relaxed the lockdown measures (effective from May 4),but they remain in place for certain states such as Kano. Government offices implemented reduced operating hours, with strict adherence to social distancing guidelines.

 

Some of the regulatory agencies have indeed put in place policies to help control the spread of COVID-19; they include:

• the waiver of import duty and fast-track clearance procedures on all medical equipment and supplies imported into the country;

• the grant of tax holidays for investments in the country’s healthcare and pharmaceutical sector;

• the grant of expedited registration (with limited approvals) of products deemed to have urgent public health impact; and

• emergency use authorisation for diagnostic test kits to support the national response and ensure expanded testing capabilities.

The Ministry of Trade and Investment administers both the Trademarks Registry as well as the Patents and Industrial Designs Registry. Both IP Offices were closed during the lockdown period and the staff worked from home. This has disrupted services and we do not anticipate urgent support activities to be available for ongoing or new filings as well. However, we understand that there will be a member of staff for each department in each registry to attend to enquiries and other such related matters.

Stakeholders have been encouraged to use the online filing platform. We have used the platform for filings during the lockdown.

 

The Chief Justice of the Supreme Court of Nigeria ordered the closure of all courts for two weeks in the first instance, while the Heads of Courts were directed to decide strategies for addressing urgent, essential or time-sensitive cases within the period.

In line with this order, the Lagos State Chief Judge issued a directive on March 20 to allow only those individuals who need to file urgent matters access to the court premises. Further audience was limited to the litigants, witnesses and counsel only. In criminal matters, only remand or bail applications and overnight cases will be heard, whilst in civil matters, only ex parte, urgent matters and adoption of written address will be entertained. Following the relaxation of the lockdown order (effective from May 4 2020), the courts have gradually commenced activities on a part-time basis.

These measures obviously have a negative impact on access to justice and the settlement of commercial disputes as parties are not able to approach the courts for the determination of their rights and ongoing matters will be delayed until the end of the prescribed period. While there is an exception for essential matters, the reality is that the judges could not sit and so proceedings for deemed essential matters could not proceed. This may have been inadvertently exacerbated by the lockdown directive by the Federal Government as well as the stay-at-home order on the state’s civil servants from Grade 1 to 12 (effective from March 22).

Also, the Nigeria Police Force advised that people should refrain from coming to the police stations during the lockdown period. This has reduced law enforcement activities including anti-counterfeiting measures during this period.

We have seen a rise in innovation for products, processes and solutions to tackle the health crisis. For example, ABU Zaria Mechanical Department recently commissioned a sanitising machine called “X-tra clean”, an invention that is under patent. The Nigerian Air Force has started producing personal protective equipment (“PPE”) and supplying oxygen from its recently constructed oxygen plant. There is also renewed interest in traditional knowledge as people seek alternative medicines.

Public institutions, such as universities and other entities, producing basic PPE should be wary of infringing IP rights. It is highly inconceivable that companies would want to enforce their IP rights and cash in on the pandemic. The courts are likely to be swayed by public health policy when faced with IP infringement claims. Furthermore, the government may compulsory licenses where a crucial drug needs to be mass produced.  

IP rights holders should reconsider their short-term priorities, bearing in mind that the public relations risk is quite high at the moment. For example, companies in negotiations should ensure royalties are not unreasonably high and seek collaborations with public entities, especially research institutions.

 

Individuals and businesses in Nigeria have been affected by COVID-19. We do not anticipate a rise in infringement claims during or after this period. It is becoming evident that the containment of COVID-19 and return to normality will depend on the measures taken by the government, regulatory authorities and individuals to “flatten the curve”.

 

This article is for general information purposes only and is not intended to be and should not be taken as legal advice. Please contact the author(s) if you have any questions about this article.