I have some news for you regarding the litigation against OLPC in Nigeria. It seems the litigation, ostensibly regarding an allegation of patent infringement, is based on an expired design registration.
The Registrar for Trade Marks, Patents & Designs at the Federal Ministry of Commerce and Industry has just sent OLPC Nigeria's law firm, Kusamotu & Kusamotu, a letter [PDF] in response to an inquiry as to whether the inventors of the KONYIN keyboard had gotten an extension to their design registration or if it had expired. After investigation, the Registrar's representative, Chinyerr Agbai, says that there is "no evidence of the extension of the Design in the Registry's record" leading it to "conclude that the certificate of extension of Design does not exist."
And yet the plaintiffs submitted a piece of paper that they swore was an extension. Is it a fraud, then? We'll find out soon, because this new letter will be filed by OLPC Nigeria with the court shortly. That should be the ball game, but in a Nigerian court, it's hard to predict outcomes.
Do you remember I said, based on my research, that I thought it had expired and hence was not validly registered and so couldn't be the foundation for any litigation? It seems I was on point.
As you know, there was nevertheless an early successful attempt to get an injunction against OLPC in Nigeria, based on the claim of patent infringement on the keyboard design.
When I noticed it seemed to have expired, I asked
Adé Oyegbola, CEO of LANCOR, the company that sells the KONYIN keyboard, about it, and he told me this:
Do note that under Nigerian Law, a RD patent holder has 6 months to pay the renewal fee. So take it from us that the renewal fees were paid within the 6 months allowed.
The office where you pay the fees says it finds no evidence that it happened.
And here's what the plaintiffs' attorney presented to the court, an affidavit [Page 1; page 2, page 3, PDFs], in which it claimed the following:
This invention was patented in Nigeria in June of 2003 with registration number RD 8489. The Certificate of Patent issued by the Trademark Registry, Abija and the Certificate of the Design are hereby attached as "Exhibits A and A1" respectively.
Actually, if you look at the design registration, the date of registration was May, not June, of 2003.
Here are Exhibit A and A1 [PDF]. If you look at Exhibit A1, you'll notice that it purports to be a Certificate of Extension, dated November 21, 2007, signed by an individual with the last name Agbai, initials C. O., above a line saying the individual is at least representing the "Registrar of Patents and Designs" for the Federal Republic of Nigeria. It "certifies" that Oyagbola and his partner on August 15, 2007 paid the fee for an extension of copyright in the Design No. 8489 and so the copyright is extended another five years.
Excuse my curled lip, please, but why isn't the certificate of the extension of the "copyright" dated August 15, 2007, then, if that is when they purportedly paid the fee and got the extension? November 21, 2007 seems like a very odd date, unless you recall that the plaintiffs filed their motion on November 22. What a coincidence. And if it were true that an extension was applied and paid for, in August or November or ever, where is the evidence of its existence? What fact basis is there to certify that it happened? And who signed it? The Registrar's Office, the real Chinyerr Agbai, now says there is no proof that this ever happened.
I know. The dog ate it.
It is also a matter of record that Oyegbola was convicted of bank fraud in Boston in 1990 and served a year in prison.
OLPC Nigeria already told the court that the Extension of Design was invalid, but the court ignored them. I don't think it will do so now. If there is no valid extension, an injunction based upon it would be improper, obviously. The court will have another opportunity to get it right, as this letter will now be presented to the court. That's if it *wants* to get it right, which I am not at all convinced it does.
OLPC's attorneys also already tried to tell the court that it doesn't use the KONYIN keyboard in any case, but the court let the injunction stay in place, essentially saying it wanted to have a hearing, so testimony could be heard. Hopefully, this injustice will be corrected shortly, after the hearing, and the final result will bring honor to Nigeria.
Here's the letter as text:
FEDERAL MINISTRY OF COMMERCE AND INDUSTRY
COMMERCIAL LAW DEPARTMENT
4th March, 2008
Kusamotu & Kusamotu
Attention: Ayo Kusamotu
RE: ENQUIRY IN RESPECT OF CERTIFICATE OF REGISTRATION OF DESIGN RD 8489 - KONYIN KEYBOARD
Sequel to your enquiry on the above subject matter and our subsequent investigations, it was revealed that the said Design was filed and duly registered but noted that there is no evidence of the extension of the Design in the Registry's record.
By this development, the Registry is surprised that a certificate of Extension of Design could be obtained without proper p[r]oof of records in the Registry, and can only conclude that the certificate of extension of Design does not exist.
For: Registrar, Trade Marks, Patents & Designs