© 2019 - International Centre for Investigative Reporting
2019 election threatened as INEC defies court order on patented ballot box uses
PLANS for the smooth conduct of the 2019 general elections may soon hit the rock as the Independent National Electoral Commission (INEC) has continued to disobey court orders that prevent the election body from using ballot boxes and other election materials under patent rights, unless royalties are paid to the patent owner.
Documents obtained by The ICIR show that the patents were duly registered by Bedding Holdings Ltd (BHL). Bedding Holdings specialises in the general fabrication and manufacture of steel metal products such as transparent ballot boxes, electronic collapsible transparent boxes and others.
On January 12, 1998, the company was issued with a Certificate of Registration of Patent Rights (RP 12994) and Registration of Industrial Designs Rights (RD 5946) over the fabrication of Transparent Ballot Boxes.
Also, on November 27, 2006, the company was issued with Patent Rights No. RP 16642 and Copyright Designs No. RD 13841 over the invention of “electronic collapsible transparent ballot boxes”, an improved version of the first product, as well as patent rights over the Proof of Address System/Scheme (PASS), which enables the production of the voters’ register.
The Electronic Card Reader (ECR) and Permanent Voters’ Card (PVC), BHL has said, are integral features of the second set of patent rights. All these, according to relevant laws, entitle the company to the sole right to produce and sell the patented products, unless it decides to grant licences to another corporation.
Sylvester Osadolo Odigie, BHL’s chief executive officer who says he has registered over ten patents recognised by the World Intellectual Property Organisation (WIPO), explained to The ICIR that he has been working with INEC as a specialised contractor since 1987, when it was headed by Eme Awa and was then known as the National Electoral Commission of Nigeria (NEC).
At the time, he said, cash boxes belonging to the Central Bank of Nigeria were the materials used for elections, so he came up with the idea of ballot boxes and got approval to produce 20,000 pieces. He also patented ideas and designs for card readers and voting cubicles, otherwise known as collapsible polling booths.
He added that the commission had been cooperating prior to the appointment of Maurice Iwu as the chairman of INEC in 2005. On January 29, 2003, BHL executed a licence agreement with INEC, granting licence over transparent ballot boxes till March 29, 2003.
Iwu, however, stopped all royalties BHL is entitled to from commission’s procurement and did not involve the company in further licence agreements. Subsequent chairmen of the commission, including Attahiru Jega and Mahmood Yakubu, have toed the same line. This is in spite of the clear provisions of the Patents and Designs Act.
Section 6(1) of the law states that “a patent confers upon the patentee the right to preclude any other person from … making, importing, selling or using the product, or stocking it for the purpose of sale or use”. Section 23(1) then provides that “a patentee or design owner may by a written contract signed by the parties grant a licence to any person to exploit the relevant invention or design”.
There are two subsisting court judgments which favour BHL, one declaratory while the other is monetary, but INEC has continuously disregarded both. This led the company to file an originating motion on December 13 for the execution of the judgments. Owing to the commission’s contempt of court, an interest of 10 per cent has accrued on the judgment debt, adding up to an estimated fine ofN20 billion.
String of disregarded court judgments
In January 2014, The ICIR reported that the Federal High Court awarded against INEC the sum of N17.3 billion, being half the cost of the items imported for the election, which Bedding Holdings claimed would have been “minimum reasonable royalty accruable” to it.
The company had sued the electoral body for not seeking its consent as the owners of the patent over the use of a data capturing system and transparent, collapsible ballot boxes in Nigeria before awarding a contract for the supply of the electoral materials used in the 2011 general election.
The court granted all the reliefs sought by the plantiff, including a declaration that the plaintiff is the bonafide owner of the patent rights and that INEC infringed on the said rights by procuring certain materials without the plaintiff’s prior consent.
The court also stood by its ruling in 2012, read by Justice Adamu Bello, which had declared as illegal the use of the transparent ballot boxes in the Edo gubernatorial election and barred INEC from using the patented products for elections without the express permission and license of the plaintiff.
INEC has, however, gone on to organise several elections, including 2014 gubernatorial elections in Anambra, Ekiti and Osun States, and the 2015 general elections, without the active involvement or consent of the statutory patentee.
Before instituting the first case in 2011, Bedding Holdings wrote to INEC to inform it that its seeking bids for “the supply of 150,000 units of Collapsible Transparent Ballot Boxes” conflicted with its patent rights. But the commission went ahead to award contracts to Emchai Limited, Tambco United Limited and Anowat Project and Resources Limited, and then secured approval from the Federal Executive Council.
In his presentation to the council, the President said Emchai Limited possessed patent “to its design and specifications”. It was then discovered that the Registrar of Patents, under the Ministry of Trade and Investments, had indeed issued, in October 2010, the same patents issued to Bedding Holdings to other companies, including Tambco United Nigeria Limited and Anowat Project and Resources Limited.
In the 2012 judgment of the Federal High Court, an application for a perpetual injunction was granted, restraining all other persons, including the two companies, from dealing with the patented products except with the express consent and authority of Bedding Holdings.
BHL files again
Bedding Holdings has decided not to put the issue to bed as it has again filed an originating motion at the Federal High Court. Before this, in October, the court had granted a temporary garnishee order over INEC’s account with the CBN over its refusal to pay its judgment debt.
In the document filed on December 13, a copy of which was given to The ICIR, the company prays the court to declare INEC’s “continuous contempt’ as illegal, to compel the commission to abide by the 2012 and 2014 judgments, to direct the commission to pay exemplary damages of N50 billion for right infringement, and to restrain it from further using, without prior consent, the transparent ballot boxes, direct data capturing machines, electronic card readers, permanent voters; cards and the Proof of Address System Scheme.
Odigie, in his affidavit written in support of the motion, said it would be in the interest of justice for the court to grant his company’s application as it continues to “suffer great financial loss and hardship due to the act of the respondents in deliberately refusing to pay the royalties accruable to the applicant for the patented materials.”
Giving an ex-parte ruling on Tuesday, the court restored its judgement of July 5, 2015, affirming the patent rights of BHC and the implications of the rights. Justice Nnamdi Dimgba also gave permission to the firm to commence the process of enforcing the earlier judgment delivered by Justice Adamu Bello.
The case was adjourned to January 15, 2019, to allow the court hear the motion on notice filed for the enforcement of the judgment. If all the reliefs sought are granted, it is expected that the judgment may constitute a major setback for the 2019 general elections.
During a phone conversation with The ICIR, Rotimi Oyekanmi, Chief Press Secretary to the INEC Chairman, said the case is not new and advised that the history of the Bedding Holdings and the series of litigation be investigated. He suggested that no valid judgment has been delivered in favour of the company since the conflict broke out.
“They keep going to court, and I don’t know why they keep doing that. I don’t know what their motive is,” he said. “It is easy for a company to come and say they are doing this. You need to also, as journalists, investigate them. Who are they? What patent do they have? What have they done before? You know, when you are going to equity, you go with clean hands.
“If they claim to have done something, let them give you the history. When was the company created? Get all those facts. That is the starting point … because anybody can come and say I have taken anybody to court. Taking to court is not judgment. Anybody can go to court, but what does the judgment say? It is a long way to judgment.”
Oyekanmi also said the company’s persistence has implications on national security and questioned the good intentions of the owners.
He said: “We are having a major election. Do you know what it means? And one company is saying it is going to court that we should not have the election. Do you know the implication of that on national security? Because he thinks he wants to make money [inaudible sentence], and that’s the best thing he can do? This country belongs to all of us.
“What patent do they have? What do they manufacture? What is it that you have that you think it is because of that you have to stop a whole election management body from conducting an election. Please carry out your investigation, you will be surprised what you are going to find. I don’t want to say more than that.”
The INEC PRO said he would not give additional comments on the subject when The ICIR drew his attention to evidence of a contract awarded to Bedding Holdings in 1987 for the supply of metal ballot boxes by the then National Electoral Commission.
It is not clear if there are private companies in other countries that are repeatedly paid royalties for inventing and patenting voting equipment. However, the evolution of voting machines in the United States has been made possible through inventions by private individuals and corporate entities (including IBM) — some of them bought and deployed in various elections, such as the Votomatic.
In 1900, the government established the U.S. Standard Voting Machine Company, having Alfred Gillespie, a private inventor who introduced several refinements to the machines in use, on its board of directors. It had monopoly on voting machines until Samuel and Ransom Shoup obtained patent for a competing machine in 1936.
In Nigeria, information about patents is not publicly disclosed by the Trademarks, Patents and Designs Registry. The country is one of the few that do not have statistics about patent applications in the 2017 World Intellectual Property Indicators report. It is reported that only 11.7 per cent of 4,823 patents filed between 1998 and 2007 in Nigeria were filed by local nationals, while the rest originated from foreign companies.