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The Nigerian OLPC Dispute - How Does It Look? - Updated
Sunday, December 02 2007 @ 01:33 AM EST

I thought you might like to see the Lagos Analysis Corp.'s keyboard "patent" allegedly infringed by OLPC. It turns out it's not a patent in the usual sense. It's a design registration. Why does that matter? Because what is registered is the way it *looks*, not the way it *works*. Obviously, that has implications for searching for prior art. I don't know anything about Nigerian patent law, but here's how the USPTO FAQ explains the difference between a utility patent and a design patent in the US system:
What is the difference between a utility patent and a design patent?

A utility patent may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, compositions of matter, or any new useful improvement thereof. A design patent may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.

So, if looks are what count, would you like to see how it looks? I have the certificate of registration from Nigeria.

Here it is, page by page:

You see on page 1 the RD? That stands for design registration. Any blank lines on the form mean that you can ignore that part; it's not applicable, according to the directions given for filling out a patent application by the Nigerian National Office for Technology Acquisition & Promotion website.

Now, you might also like to know that Hiawatha Bray in the Boston Globe is reporting that one of the inventors of the allegedly infringed keyboard once went to prison for bank fraud and that he has plans for further litigation:

The founder of Lagos Analysis Corp., Ade Oyegbola, was convicted of bank fraud in Boston in 1990 and served a year in prison. Oyegbola insists his Nigerian patent is legitimate and said he plans to file a copyright-infringement lawsuit against OLPC in an American court.

From what I see, that may be difficult, as the copyright on the design appears to have expired. Note on page 1 the stamp says, "N.B. Copyright in this Design will normally expire on the 15/8/2006 but may, on application made in the prescribed matter, be extended for two further periods, each of five years." I see no such application to extend it. Presumably, that means it has expired. I have written to Lagos Analysis Corp. and the attorney representing them to ask about this, and when I hear from them, I'll let you know if there is any further information.

Let's look at the two keyboards. Notice this comment from OLPC News:

The prefix "RD" suggests the registration is a Registered Design, not a Patent. The Nigerian Patents and Designs Act sections 12-22 implements a Register of Industrial Designs.

Comparing the XO Nigerian layout to the KONYIN layouts shows that the assignment of symbols to keys is different as is the method to access them. The KONYIN has a dedicated "Ng" key on the right side.

There is further information in the Nigerian User Guide [PDF]. The KONYIN claims its uniqueness is in delivering TWO key-scan codes (Unicode) to the PC driver. As far as I know XO uses the standard XKB mechanisms and a regular SINGLE key-scan code from the keyboard.

So if they don't look alike, and the registration protection is for how they look, that would seem to be that. But according to the comment, they don't work alike either, should that ever matter.

So, if Nigerian law is anything like US patent law, the accusation will have to be that OLPC looks too much like KONYIN's keyboard. The keyboard OLPC has "uses a keyboard programming technique developed in 1996", long before the Nigerian keyboard was filed for registration, according to Nicholas Negroponte, quoted in the same Boston Globe article, which also tells us that Peru just signed on the dotted line for 260,000 of the laptops, and that the Give One Get One program is going great, with OLPC receiving around $2 million a day in orders. There is also a Give Many program now, where charities can buy hundreds or thousands of laptops to give away.

If you look at this announcement of the KONYIN keyboard invention, the date the "invention" was announced to the world was 2005:

A MULTILINGUAL computer keyboard, capable of typing "diacritical marks and characters" of over 400 Nigerian languages has been invented.

The inventor is a Nigerian mechanical engineer, Mr. Olukayode Oluwole, who is based in the United States.

Diacritical characters and marks are meant to distinguish different sounds and meanings of various words and letters, according to language experts.

Unveiling the new invention in Lagos on Monday, Oluwole, who is based in Boston, Massachusetts, said that the keyboard, which has already gone into commercial production, would hit the Nigerian market in May.

The keyboard will be marketed by Lagos Analysis Corporation (LANCOR).

He said that he, along with another U.S based Nigerian, Mr. Ade Oyegbola, president, LANCOR and Mr. George Van-Lare, managing director, LANCOR, spent about eight years on extensive research before they completed the project.

However, they produced several other prototypes before hitting on the final version. So the obvious question has to be, is the protected design registered identical to the one that they currently sell or is it for an earlier prototype that didn't work out?

Since we had planned to search for prior art, if you wish to note any, keep in mind that we're talking about design, not function here and that the scope of a design patent is much narrower than the scope of a regular patent. In addition to the different scope of coverage, the nature of the relevant prior art would be quite different -- the prior art relevant to design patents would be prior ornamental designs. It's the non-functional aspects that are covered, rather than how it works or what it does. There is a Wikipedia article on design patents. And I would assume that the drawing submitted would be the protected design, not any later embellishments.

I can't help but wonder if NOTAP knows what is going on. Here's their mission and a little history:

The National Office for Technology Acquisition and Promotion (NOTAP), an agency under the aegis of the Federal Ministry of Science and Technology was established by Decree No. 70 of 1979, as the National Office of Industrial Property (NOIP).

It is a corporate body with a mandate to implement the acquisition, promotion and development of technology and at the same time correct certain imperfections in the acquisition of foreign technology into the country. In 1992, the name of the Office was changed to National Office for Technology Acquisition and Promotion (NOTAP) by Decree No. 82 of 1992. This was to ensure that the name adequately reflects the entire functions of the Office and to also remove any ambiguity or misconception that may arise in relation to any other Government agency.

In line with globalization and liberalization of the world economy, NOTAP has shifted its emphasis from regulatory and control to promotional and developmental roles. The new areas of focus are aimed at attracting foreign technologies and investment and the development of indigenous technology. NOTAP was therefore established as one of the main instruments to carry out the National Policy on Technology Development. Part of this policy stipulates the encouragement of the flow of technology into the country in order to strengthen industrial development and encourage domestic enterprises to acquire foreign technologies that are suitable to the local environment.

They provide various services, including a Patent Information Documentation Centre (PIDC), where one can do free patent searches, with "an online linkage with WIPO". Here's NOTAP's eOffice, but I don't see how one uses it to search. It didn't work for me using the inventor's name, for example, unless I mistyped. Or perhaps it did work, and there is in fact no patent. Maybe one of you brainiacs will be able to figure it out.

In short, I can't see this going anywhere, from what we currently know, on the patent front. As for any US copyright claim, I can't even imagine what they are thinking of trying. Just another sad chapter in the OLPC story.

Could all you commercial entities and individuals out there please keep in mind that this is a charity, for crying out loud, trying to make the world a *better* place?

I'll keep you posted if there is further news. Our thanks to to Groklaw member DesignerFX for providing us with the PDFs. Thanks!

Would you like to see some pictures and a report on the first deployment of XO laptops in the world, in Uruguay? Here you go! The report is from Ivan Krstić, who developed Bitfrost and whose talk at Google on OLPC we earlier featured on Groklaw, and there more information on a neat way they've come up with to try to prevent theft. Look at the children's faces! This is so worth doing.

Update: Groklaw's TJ points out that the comment I quote from on OLPC News was orginally posted earlier on Groklaw, and it included, on Groklaw, the link to the Nigerian Patents and Designs Act. I can't help but notice this part:

15. Notwithstanding anything in this Act, where a Minister is satisfied that it is in the public interest to do so, he may authorise any person to purchase, make, exercise or vend any patented article or invention for the service of a government agency in the Federal Republic.

And here is what constitutes prior art in Nigeria:

1. (1) Subject to this section, an invention is patentable-

(a) if it is new, results from inventive activity and is capable of industrial application; or

(b) if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.

(2) For the purposes of subsection (1) of this section-

(a) an invention is new if it does not form part of the state of the art,

(b) an invention results from inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial result it produces; and

(c) an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.

(3) In subsection (2) of this section, "the art" means the art or field of knowledge to which an invention relates and "the state of the art" means everything concerning that art or field of knowledge which has been made available to the public anywhere and at any time whatever (by means of a written or oral description, by use or in any other way) before the date of the filing of the patent application relating to the invention or the foreign priority date validly claimed in respect thereof, so however that an invention shall not be deemed to have been made available to the public merely by reason of the fact that, within the period of six months preceding the filing of a patent application in respect of the invention, the inventor or his successor in title has exhibited it in an official or officially recognised international exhibition....

(5) Principles and discoveries of a scientific nature are not inventions for the purposes of this Act.

And you'll note in the next part that Nigeria is a first-to-file country, so it doesn't matter when the inventors started fiddling around with earlier prototypes. What counts in the date of filing, August of 2001. But there is a quirk to it:

2. (1) Subject to this section, 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.

(2) The true inventor is entitled to be named as such in the patent, whether or not he is also the statutory inventor, and, the entitlement in question shall not be modifiable by contract.

(3) If the essential elements of a patent application have been obtained by the purported applicant from the invention of another person (or from that other person's successor in title) without the consent of that other person (or his said successor) both to the obtaining of those essential elements and to the filing of the application, all rights in the application and in any patent granted in pursuance of it shall be deemed to be transferred to that other person or his said successor, as the case may be.

Here's what a patent application is supposed to include:

(2) The description referred to in subsection (1)(a)(ii) of this section shall disclose the relevant invention in a manner sufficiently clear and complete for the invention to be put into effect by a person skilled in the art or field of knowledge to which the invention relates; and the claim or claims referred to in subsection (1)(a)(iii) of this section shall define the protection sought and shall not go beyond the limits of the said description.

But here is the most important find, that patent examiners in Nigeria don't even look at whether a patent is deserved, so the patent is granted at the risk of the patentee:

(2) Where the examination mentioned in subsection (1) of this subsection shows that a patent application satisfies the requirements of section 3(1) and (3) of this Act, the patent shall be granted as applied for without further examination and, in particular, without examination of the questions-

(a) whether the subject of the application is patentable under section 1 of this Act;

(b) whether the description and claims satisfy the requirements of section 3(2) of this Act; and

(c) whether a prior application, or an application benefiting from a foreign priority, has been made in Nigeria in respect of the same invention, and whether a patent has been granted as a result of such an application.

(3) Where the said examination shows that section 3(4) of this Act has been complied with as respects a claim for a foreign priority, the foreign priority claimed shall be mentioned in the patent.

(4) Patents are granted at the risk of the patentee and without guarantee of their validity.

I gather then that unlike the US where there is a presumption of validity, a Nigerian patent means no such thing. That's for a court to decide. So far, then, all the KONYIN keyboard has is some paperwork filed and accepted. There is no presumption that it is a valid patent. I'd say things are looking up for OLPC. Even if the patent were valid, it doesn't apply to a charity, from my reading of this section:

6. (3) The rights under a patent-

(a) shall extend only to acts done for industrial or commercial purposes; ...

OLPC has no industrial or commercial purpose. It's just trying to improve the lives of children in Nigeria. And section 6.(2) limits the protection to the description in the application:

(2) The scope of the protection conferred by a patent shall be determined by the terms of the claims; and the description (and the plans and drawings, if any) included in the patent shall be used to interpret the claims.

Section 7 reveals that a Nigerian patent lasts 20 years, but there is an annual fee, and if you don't pay that fee annually, you lose your patent. If a patent has lapsed or expired, it has to be registered and notified. And here's how a court can declare a patent null and void:

9. (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 section 3(2) 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.

So prior art counts, and obviousness would too. But it might not hurt to check the Nigerian patent database for earlier patents.

Now that is the law about patents. What about designs?

12. Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result.

13. (1) Subject to this section, an industrial design is registrable if-

(a) it is new; and

(b) it is not contrary to public order or morality,

(2) Where application is made for the registration of an industrial design, the design shall be presumed to be new at the time of the application except in so far as the following provisions of this section provide otherwise-

(3) An industrial design is not new if, before the date of application for registration, it has been made available to the public anywhere and at any time by means of description, use or in any other way, unless it is shown to the satisfaction of the Registrar that the creator of the design could not have known that it had been made so available.

(4) An industrial design shall not be deemed to have been made available to the public solely by reason of the fact that within the period of six months preceding the filing of the application for registration the creator has exhibited it in an official or officially recognised exhibition.

(5) An industrial design is not new merely because it differs in minor or inessential ways from an earlier design or concerns a type of product other than the type with which an earlier design is concerned.

And just like with patents, the protection is only from commercial competition:

19. (1) Registration of an industrial design confers upon the registered owner the right to preclude any other person from doing any of the following acts-

(a) reproducing the design in the manufacture of a product;

(b) importing, selling or utilising for commercial purposes a product reproducing the design; and

(c) holding such a product for the purpose of selling it or of utilising it for commercial purposes

The protection, even if it applied, only lasts for five years from the date of registration unless a fee is paid to renew it for two further periods of five years, and there is no indication that this extension happened. There is a six-month grace period, but that would have run out in January of 2007, by my reckoning. Really, folks, I'm not a lawyer and I'm not Nigerian, but this litigation looks to me to be going absolutely nowhere, and I'm quite surprised it was even attempted, unless the written law in Nigeria has no real-life meaning.

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