Intellectual property law is interested in protecting the product of human mind or product of creation. IP is sometimes regarded as protecting the physical embodiment of an otherwise intangible asset. The twin issues of rule of law and trade find expression in intellectual property rights (IPRs).
IPRs are meant to protect rights of innovators, traders and consumers.
A member state of WIPO since 1971, Kenya has four intellectual property protection bodies: the Kenya Industrial Property Institute (KIPI), the Kenya Copyright Board (KECOBO), Kenya Plant Health Inspectorate Services (KEPHIS) and the Anti-Counterfeit Agency (ACA). Other bodies such as the Kenya National Innovation Agency (KENIA) and the National Research Fund support the broader development of Kenya’s innovation landscape by, for example, strengthening linkages between academia and business.
Intellectual property is given high priority in Kenya. Section 40(5) of Kenya’s 2010 Constitution obliges the government, among other things, to protect and enforce Kenyans’ IP rights.
Kenya has complied with her international obligations with respect to IPRs. This
has been done through domestication of international conventions. Most
critically Kenya is TRIPS compliant. The only shortcoming is that Kenya
has focused on international instruments at the expense of her traditional
knowledge.
According to the U.S. Chamber International IP Index 2020 (the “IP Index”), Kenya is one of the best-scoring economies in the region, ranking 41st of 53 global economies.
Kenya has an advanced legal and institutional framework for IP protection, but deficient enforcement of existing IP legislation continues to be a serious challenge against curbing the flow of illegal products.
Manifestations of IP
- Patents
The certificate that you get from the patent office after you have made an invention. The relationship that exists between an inventor on one hand or patentee and the patent office, the estate or society. It is a juridical relationship between an inventor or patent owner on one hand and on the other hand the patent office or the state or society in general. The inventor is that person who has brought out a new process or a new invention. A patent owner is the person who holds the rights. The state here is Kenya and the office is Kenya Intellectual Property Institute (KIPI). To get a patent one must have an invention, it must be new (novel). In the case of Windsurfing v Tabur Marines – a boy used to play with a play boat, later on a company made a similar play boat and wanted a patent on it, they were denied because it was not new. It must constitute an inventive step – this is the doctrine of non-obviousness i.e. is it obvious to PHOSITA (person having ordinary skill in the art), an invention need not be complex for it to constitute an inventive step, it may be simple but not obvious. Patents must be useful (doctrine of utility), it must be capable of industrial application this is the same as utility.
- Utility Models
These are sometimes called petty patents. The concept is that there are certain innovations that don’t need to be entirely new, it might be new in Kenya but not necessarily elsewhere, the newness need not be absolute and there need not be an inventive step, it must be useful. Kenya has both patents and utility models, Kenya Ceramic Jiko (KCJ) from the metal jiko we realised the need to conserve energy, the idea was that metal was making energy disappear but ceramic would conserve energy. Utility Models can be used to protect Kitenges, Kikoi’s etc which is also a case of copyrights.
- Copyright:
Protects original expressions embodied in material, tangible or fixed form. © it starts with an idea, it is expressed and the expression is then embodied in material form. For example a writer gets the idea to write, writes notes down on a piece of paper and then the book, this is the idea, expression dichotomy. Ideas are not protectable in intellectual property expressions are. Copyright is more dynamic 3 areas where copyright is useful i.e. in software, literature and entertainment amongst others.
- Trademarks
- Trade secret
Our specialist intellectual property and technology lawyers’ work closely with clients to develop, protect, promote and enforce their intellectual property rights. We advise on all aspects of the exploitation and use of intellectual property rights and the acquisition and use of information technology products and services. We work for companies in a variety of industries and our specialist intellectual property expertise ensures that we are able to provide cost effective advice that is commercially sound and practical. Our lawyers are also experienced in both contentious and non-contentious enforcement of intellectual property rights relating to expungement, infringement and opposition proceedings in respect of patents, plant breeders rights, unregistered and registered designs, copyright and database rights, image rights, domain names, trade marks and the law of passing off. We handle and advise on registration of various IP rights through local, regional and international registries. We also advise on legal issues arising from parallel importation of goods.
We offer particular expertise in relation to acquisition of rights, transactions involving licensing and the transfer of technology, technology joint ventures, research and development and franchising agreements.
Our practice and expertise also extends to advising on intellectual property questions arising in connection with mergers and acquisitions and establishment of new businesses. We also advise on regulatory and liability questions on and arising from the introduction and use of transgenic materials in the local market
Authored by Henry Njuguna Adv, MCIArb
We at NKN will gladly help through this process. Reach out on 0722382783.