The venerable Justice Ayo Salami, former President of the Court of Appeal, was right after all. Some judgments handed down by some judges do more damage not just to the judiciary but to the national psyche. Some judgments run against the grain of national interest, public order and public good. It is in this context that the recent judgment by Honourable Justice Ibrahim Auta, Chief Judge of the Federal High Court sitting in Abuja, in Suit No. FHC/ABJ/CS/816/2010, involving Bedding Holding Limited against the Independent National Electoral Commission (INEC), its chairman, Prof. Attahiru Jega, and the contractors engaged by INEC for the procurement of DDC machines for the registration of voters to develop a voters’ register preparatory to the last national elections deserve further extrapolation. The contractors included Zinox Technologies Limited (an indigenous ICT group), Haier Electrical Appliances Corporation, and Avante International Technology Incorporated.
The plaintiff (Bedding) had gone to court to challenge the award of contracts by INEC to the three companies on a matter it has exclusive patent. Bedding Holding has claimed for a declaration that it is the bona fide owner of the Patent Rights No. RP 16642 and Copyrights Designs No. RD13841 in and over Electronic Collapsible Transparent Ballot Boxes (ECTBB) and Patent Rights No. RP NG/2010/202 – Proof of Address Systems/Scheme (PASS) (Embedded with the Concept of the Coded Metal Plate). Consequent upon this, the plaintiff claimed a declaration that it is entitled to 50 percent of the total contract sum of N34,517,640,000.00, which was the value of the contract entered into between INEC and the contractors for the supply of the DDC machines for voters registration. It needs to be clarified that all the reliefs sought by the plaintiff are all declarations and there was no reliefs as to orders. Yet, Justice Auta entered judgment and granted the claims of the plaintiff including the declaration for entitlement to 50 percent of N34,517,640,000.00, to wit, N17,258,820,000.00, even though the plaintiff in the course of the proceedings never led evidence to prove this figure.
This and many other factors make the judgment strange and curious. Two things are at play here. Either as a nation, our legal system has not grown to the point of having mastery of the sophistry, language, composition and deployment of Information Communication Technology (ICT), or there was a deliberate conspiracy to deploy techno mumbo-jumbo just to hoodwink the judge into giving a ruling that at the very best mocks both logic and the law. The critical issue here upon which judgment was entered is ownership of patent. What constitutes a patent? And on what basis should a patent be granted to an individual or body corporate?
A patent is an exclusive right officially granted by a government to an inventor to make or sell an invention. Therefore, patents are for inventors as reward for their invention. Patents are granted for inventions. The very fact that it is called an invention worthy of patent suggests that such invention is new, unique and has never before been achieved. All over the world, patents are treated with utmost seriousness hence no nation under the sun has ever granted patent to a company or individual for Direct Data Capture (DDC) machines used for the purpose of collating voter register or registration of citizens through a process that requires capturing of their biometric data. Only Nigeria has done so.
It is strange that the Nigerian Patent Office would issue patent over a process which origin is not traceable to any Nigerian. For the avoidance of doubt, the DDC machine is not a device manufactured by one company or individual, neither can the process of deploying same machine for the purpose of collating a voter register be ascribed to a single entity. The DDC machine comprises a laptop with camera, fingerprint capturing device (scanner) and printer, and you need a software to tie them up together to function as a unit. Each component of the DDC machine has multiple manufacturers, namely, you can use a HP, Zinox, Acer, or Dell laptop. Same applies for other components, the scanners and printers. They are only proprietary to the Original Equipment Manufacturers (OEMs) who own the trademark, but not the patent. Neither can any Nigerian lay claim to owning the patent for the process of deploying DDC machines.
It is plausible to assume that the Patent and Designs Act envisaged the limited understanding of technological and patent matters by judges as they are not experts in technical matters. Thus, the Act had embedded in it several safety valves to guide the judge and guarantee the deepening of the judicial process. Section 26(2) of that Act, enjoins a court hearing proceedings relating to patents and designs to sit with and be advised by two assessors having expert knowledge of matters of a technological or economic nature. Perhaps, if the Honourable Justice Auta had availed himself of this provision, the judgment would have profited from such opinion.
In my opinion, this judgment has exposed the Patent Office as a public agency that has failed to draw a line between its duties and the overriding need for public interest and order. If granting patent to an individual or group for a process or ‘invention’ would jeopardise public interest, the Patent Office ought to have shown caution. The matter is made worse and pathetic by the mere fact that in the instant case, what has been patented is no invention either by an individual or a group.
This judgment obviously has foreboding implications for future national transactions and exercises that promote public good and public order. It means that all those agencies or private bodies and persons the nature of whose functions require production of ID cards or generation of an identity document consisting of the individual’s bio-data (name, address, occupation, photograph etc) are affected by this judgment. They would be infringing on the plaintiff’s patent right, going by this judgment. Consequently, INEC (in future voters registration), Immigration (International Passport), National ID Card Scheme, FRSC for driver’s licence, the police, the military, embassies, telecoms firms (SIM Card registration), private firms, must obtain the licence of the plaintiff before undertaking such exercise.
It is my considered view that this is against public order and interest. It is unthinkable that a nation cannot conduct the registration of its voters and/or generate ID cards for its citizens without paying royalty to one citizen. It has never happened anywhere in the world, not even in the United States, the real custodian of ICT knowhow. This portends danger for future elections especially the 2015 elections. For the sake of our democracy, the federal government should advert its mind to the goings on in the Patent Office and nullify all frivolous and utterly vexatious patents standing in the way of public order and national interest.
•Abubakar, ICT consultant, lives in Kano
