By Samwel Ouma
Entrepreneurship
all over the world is emerging today as an avenue for gainful employment.In Kenya, the Micro,
Small and Medium enterprises employs over 80% of the total working population.
Technological progress and economic strength in any modem nation, Kenya
being no exception, depends greatly on the ability of its nationals to be
creative and innovative and be aggressive in the promotion of trade both at
home and abroad. Are there Laws and legislation in Kenya that helps in curbing
challenges of counterfeiting and stealing of innovative and creative pursuits
mostly advanced by small and medium sized enterprises?
Micro, Small and Medium
enterprises are currently receiving a lot of government attention. It is seen
as the solution to the crippling unemployment especially for the youth. The ability of our people to be creative and innovative
has propelled economic growth to a large extend. A challenge of counterfeiting
and piracy epidemic is affecting business startups both small and medium sized business greatly.
Stealing other peoples
Innovations and creativity is not only illegal in Kenya but also creates unfair
competition which has lead to a significant loss on businesses and the global economy.
In order to promote and protect inventiveness and creativity, Article 40 of
the Kenyan constitution 2010 gives exclusive rights to protection of right to property.
Article 40 section (5) state that the state shall support, promote and protect
the intellectual property of the people of Kenya.
Intellectual property in law is an umbrella term for various legal
entitlements. Intellectual property laws are more than one and each type of
intellectual property law (IP) is different. There are four types of IP rights.
They include Designs, Patents, Trademarks and copyrights Acts.
In 2006, Prof. Tom Ogada conducted a national intellectual property audit
in Kenya, which revealed that between 1990 and 2001, Small and Medium Size Enterprises
(SMEs), also known as (Jua Kali), was the most innovative sector, with a total
of 116 patent applications at Kenya Industrial Property Institute (KIPI).
This study has shifted
our focus on one kind of Intellectual pursuits; Patent. It is backbone to
viable, innovative and competitive SMEs. Patent leads to creation of new
substances, products, devices, methods or processes which are of value. The
innovations are protected as “Patents” under Patents Act.
Patents offer inventors
monopolies on their creations for a period of twenty years in Kenya. Without
the possibility of patent protection, many people might not take the risks or
invest the time and money involved in devising and perfecting new products. For
example, our society would have benefited greatly were we to have protected
products such as the kiondo,Maasai Leso, Kikoi, Akala shoes and certain
vaccines for livestock diseases produced in Kenya.
For Patent to be granted it
needs to be new, should involve an inventive step, not obvious to a skilled
person in the technological field and industrially applicable in the concerned field.
The steps for patenting innovation in Kenya are very simple and cost maximum of
sixteen thousand Kenya shillings.
You will be required to file an application to Kenya Industrial property institute
(KIPI) - a parastatal body under the Ministry of Industrialization and
Enterprise Development. The functions of the Institute include administering
Industrial Property Rights, Provision of Technological Information to the
public, Promoting Inventiveness in Kenya and Provision of Training on
Industrial Property.
The process of obtaining
Patent involves making request through form IP3 obtained from KIPI. The form
contains the title and the particulars of the applicant or the inventor. The
Patent Application should have a description that discloses the invention and
at least one mode for carrying out the invention in full, clear, concise and
exact terms as to enable any person having ordinary skills in the art to make
use and to evaluate the invention.
Patent Application should
state on it one or more claims which seeks to clarify and define the features
of the Patent for which protection is sought. It should be clear and concise
and fully supported by the description. In defining the matter for which
protection is sought, a claim should set out the technical features that are
necessary to define the subject matter of the invention that are part of the prior art; and the
technical features that, in combination with the features above will defines
which protection is sought.
If there are any drawings
of the invention the same should be provided in the application. You will also
be required to fill an abstract which serves the purpose of technical
information. It is not taken into account for the purpose of interpreting the
scope of the protection sought. It includes the title of the invention and a
summary of the disclosure included in the description. The summary indicates
the technical field to which the invention relates and the principal use or
uses of the invention.
Kenya Industrial Property
institute will establish whether the Applicant has complied with all the
requirements under the Law for filing an Application. If one has not fully
complied with the requirements, they will be invited to make amendments to the
Application. If the Application has complied fully with all requirements, it
will proceed to substantive examination.
The Patent can only be
published in the KIPI Journal 18 month after the date of filing. This will give
notice to the whole world of the Application. Substantive Examination which
involves a determination of whether the Patent is new, non-obvious and whether
it can be applied in the industry.
The Application for Substantive examination
should be done within 3 years of filing the Application.
If the approval meets all
the requirements, it will be granted. If it does not meet the requirements it
is rejected. In case of rejection one may object the same. If final decision is
rejection one may Appeal. If it succeeds the applicant is granted Patent. The
grant is therefore published.
Creativity and innovation are proven drivers for economic growth and
competitiveness. SMEs, especially small firms, contribute greatly and
increasingly to the innovation system by introducing new products and adapting
existing products to the needs of customers.
Patents do more than keep
creative wheel spinning. They are also a means of technological exchange. Each
patent document describes a new aspect of a technology in clear and specific
terms and is available for anyone to read. Patents are made public specifically
to promote the sharing of knowledge. As such they are vital resources for
entrepreneurs, researchers, inventors, academics and others who need to keep up
with development in their fields.
Kenya is a signatory to
multinational treaties and agreements, which provide some form of harmonization
in the protection of intellectual property. Kenya is a member of the following Organizations,
Protocols, treaties and agreement. Trade Related Aspects of Intellectual
Property Rights (TRIPS) Paris convention for protection of Industrial Property Patent
cooperation treaty – PCT. World Intellectual Property Organization (WIPO)
African Regional Intellectual Property Organization – (ARIPO)
Protection of IP rights
however is territorial. If you intend to obtain protection in multiple
countries, there are three approaches you can utilize. First you can file a
request in each of the countries where you want protection. Or file an
application as provided for under what is known as the Patent Cooperation
Treaty (PCT) with the World Intellectual Property Organization (WIPO). This is,
however, just a filing system.
Ultimately you will need
to process the applications in each of the countries where you want protection.
Finally there are regional offices which are mandated by state parties to receive,
process, grant and register IP for and on their behalf. Examples are the
African Regional Intellectual Property Organization (ARIPO), Organization
Africaine de la Propriété Intellectuelle (OAPI), European Patent Office (EPO),
among others.
Growing economies like Kenya
continue to evolve from traditional agricultural and low-value and simplified manufacturing
activities making their Innovations and creativity prone to duplication and shortchanging.
Intellectual property assets have become strategic factors for value creation
by firms and individuals as they are increasingly important in attracting
investment, enabling productivity and efficiency gains, and fostering the
growth of innovative sectors in the economy.
