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Appeal court affirms Commandclem, inventor of QIT special paints

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THE Court of Appeal has ruled that Dr. Clement Uwemedimo of Commandclem Nigeria Limited is the statutory inventor of the Anti-Corrosive Special Paint for QIT (Transteel Blue, White Enamel) used in the production of crude oil, condensate, liquefied natural gas and other products.

In a judgement delivered by Justice Kumai Bayang Akaahs, the Appeal Court, Calabar Division, held that on the basis of Section 2 of the Patents and Designs Act Cap 433, Laws of the Federation of Nigeria, 1990, the right to a patent in respect of an invention is vested in the statutory inventor, that is to say, the person who, whether or not he is the true inventor, is the first to file, or validly to claim a foreign priority for a patent application in respect of the invention.

Justice Akaahs said the evidence adduced by Dr. Uwemedimo and CommandClem Nigeria Limited dates back to 1980 when the right to sue on the patent had accrued, noting that any infringement by the respondents or any other person will be actionable at the instance of the appellants starting from August 5, 1999 when the patent was registered by the Federal Government of Nigeria.

He said: “The learned trial judge was right to hold that at the time the defendant was said to have infringed plaintiff’s patent in the early 1980s, the plaintiffs did not have any patent to be infringed.

The plaintiffs only obtained their patent No. RP 13522 on August 5, 1999. At the time the Court of Appeal ruled that the claims in paragraph 29 (iii) (iv), (v) and (viii) of the Amended Statement of Claim were not affected by the Limitation Law, there was no consideration of the evidence to be adduced. If the evidence sustaining the reliefs fell between 1999 and 2001, the action would be maintained. “I am of the view that the respondent can enjoy the benefit created by S.2(4) of the Patents and Designs Act when a contract was subsisting between the parties at the time of the invention.”

On the issue of agreement between Dr. Uwemedimo or CommandClem Nigeria Limited and Mobil Producing Nigeria Unlimited, to pay to Uwemedimo US$2.00 per barrel for every petroleum product produced by Mobil Producing Nigeria Unlimited, Justice Akaahs held that the law does not require that every contract must be in writing unless it is a contract made under seal or it is required by statute.

He said: “If indeed there was any verbal agreement made by the defendants (Mobil Producing Nigeria Unlimited) to pay the sum of $2.00 for every barrel of crude oil produced, the plaintiffs (Uwemedimo) were too hasty in making their “invention” known within so short a time between the first contact by the first plaintiff with the defendants on May 2, 1980 and the research results on June 26, 1980 as chronicled in exhibit 8A.

Justice Akaahs ruled that he did not agree that an agreement to pay $2.00 per barrel of every petroleum product to the plaintiffs would necessarily be against public policy.  He said: “There is no evidence to presume that the agreement being envisaged was to circumvent the provisions in the Petroleum Act or that it will prevent Mobil Producing Nigeria Unlimited from paying royalties to the Federal Government. An agreement freely entered into by the parties will be enforceable unless the agreement will facilitate the commission of a crime or breach any law.”

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