The novel Coronavirus has spread from China to other countries in the world. The virus which was first detected in December 2019 in the Wuhan region in China is not sparing even developing countries. There is no known cure for the disease, however, pharmaceutical companies are working to help develop a cure. There are only numerous clinical trials of drugs being done with the hope that a cure will be found. Currently, the response to the outbreak in many countries has been to stop flights to and from badly affected areas. At a medical level, the response has been to manage the symptoms of the disease for those infected. Additionally, countries are establishing centres within existing health facilities to deal with any suspected cases. Of particular interest in this pandemic are developing nations whose medical systems are known to be strained. Most African nations categorised as developing are improving their capacity to detect and cope with it. While this is noteworthy, the writer cannot help but wonder whether the same progress will be made in the event a cure is discovered. How accessible will the drugs be to developing nations to deal with a pandemic?
Typically, corporations more than
individual inventors, are known to spearhead inventions and make use of the
patent system as a tool of protection. In fact, statistics on patent
applications and grants indicate that most patenting activity is done by companies
more than individuals.
Nevertheless, the situation is not uniform throughout the world. According to a
study interrogating whether patents and utility models encourage innovation in
Kenya, it showed that the number of individual inventors applying and receiving
patents is more than corporations.
However, despite more individuals applying and receiving patents, the number of
patents is still low and there is a high rate of abandonment of patents. The study reveals that more individuals were
granted utility model certificates than corporations. Additionally, it reveals
that despite corporations having fewer patents in Kenya, there is still
inventive work happening in the companies.
To anyone who has interacted with
news of innovation levels in Kenya, this might come as a surprise since Kenya
has been and continues to be hailed as a hub of innovation. Infact, the Global
Innovation Index (GII), continuously ranks Kenya among the highest of the
African countries. This
is despite the mentioned low number of patents. However, this can be attributed
to the fact that the level of innovation in a country is not measured by the
level of patenting activity only. The
2019 GII indicated that there are other indicators of innovation in a country
such as the amount of venture capital deals in a country, level of high
technology imports, mobile app downloads and political and operational
stability among other indicators.
According to GII, patent applications is just one of the sub- indicators under
the sub-pillar of knowledge creation which is under the larger pillar of
“knowledge and technology outputs”. The
GII uses uniform indicators to rank all the countries. For example, under the
sub-pillar of knowledge creation where patent applications fall, it shows that
Kenya ranks as number 72 out of the 130 countries.
Intellectual property is a
product of human creativity. How ideas are expressed. But how far back can we
trace creativity? It begun with human beings. Today we theorise on this based
on the creation theory supported by the Charles Darwin theory on the origins of
The creation theory is based on
religion, a divine deity who created everything and is found in most religious
books. The Bible, in the book of Genesis,
states that in the beginning, the earth was formless, void and filled with
darkness and then through proclamation, God-the divine deity, created light,
water, skies, living creatures and dry land. The dry land was called the earth.
God then made wild animals of every kind and everything that creeps upon the
ground of every kind. In Genesis
chapter 1:26-27, God said, let
us make humankind in our image, according to our likeness; and let them
have dominion over the fish of the sea, and over the birds of the air and over
cattle, and over all the wild animals of the earth and over every creeping thing
that creeps upon the earth. With this God created humankind in their image, male
and female, they created them. The creativity here rests wholly in creation of human
beings and their complexities
including the intricate nervous system, brain, the complex female reproductive
system and all human parts. Is this where it began? How does IP law relate to this
Our discourse begins here today.
Intellectual property theories propose that when one reduces their
ideas/creativity into a tangible form-expression of ideas, they are entitled to
receive periodical and monopolistic rights over the said creation. If the human
beings are the result of a creative process of the divine deity, can we argue
that the latter owns or at some point owned the IP in the human body, if any?
This blogger theorises that if
there were IP rights in a human body, it would include patents, as we know of
them today. Patent law protects inventions that are novel, industrially
applicable and not obvious. Section 2 of the Industrial
Property Act (IPA) defines an invention to mean a new and useful
art, process, machine, which is not obvious, or an improvement thereof capable
of being used or applied in trade or industry and includes alleged invention. According
to the Bible, there were no human beings in existence before the first human
being was created; this would make the human body/being novel. It would not be
an obvious creation as the existing or prior art comprised of wild animals
which although bear some similarities to the humans, the latter bear distinct
characteristics such as the female reproductive system. The human being was
created and conferred with rights to control and rule over all that was/is on
earth, therefore passing the test of industrial applicability of the invention.
The reference to “…let us make humankind in our image,
according to our likeness and proceeding to make/create a human being” in
the creation story presupposes the involvement of others who are not the
creator referenced in the bible. This would raise the concept of joint
ownership over the creation. Where an invention is as a result of more than one
person, then the ownership in the creation is vested in the persons involved in
the process. To claim ownership, one must have contributed through application
of skill and labour. Therefore, if a
person simply reviews creative work and makes minimal edits such as spellings
and sentence formations, they would not be entitled to joint ownership.
However, where such review contributes substantially to the work, then the
person making such contribution maybe entitled to claim ownership. Under
section 30 of the IPA joint ownership of inventions would be where more than
one person jointly make an invention. Section 63 provides that where there are
joint owners, exploitation of the patent rights shall be equal amongst them
unless otherwise provided. Joint ownership is a question of fact and varies
from case to case.
So, for how long would these
rights exist? IP Protection is not an eternal right.
Section 60 of the IPA, provides that a patent shall expire after twenty years.
In the case of human being creation, the divine deity’s probable patent in
Kenya would expire after 20 years from its date of application was filed with KIPI. After this
period, an invention falls to the public domain meaning that anyone is/would be
free to use the invention without infringing on the owner’s rights. The Centre
for Genetics and Society defines human cloning
to production of a genetic copy of an existing person. In the absence of any
laws preventing it, human cloning can be considered infringement where the
rights of the divine deity are protected under patent law. In support of the
Big 4 Agenda, KIPI periodically publishes a list of expired patents
whose technologies are free for commercial use by the public without infringing
on the patent owners rights.
For purposes of computing the
term and validity of the patent, the question then arises as to when the
creation actually happened. Ideally, a patent application should be filed every
time there is an invention or when there is an improvement of the existing
invention(s). In the creation theory, each human being is said to be created in
the image of the divine deity. This has three possibilities, first, that the divine deity is unique
and morphs after every creation making every one human being created in their
image a novel invention. Take for instance the fingerprints, it is said that
every human being has different or unique design of their fingerprints. Is this
an invention? Second, that the first
human being created had all the components of a human being all subsequent
humans are the same. Third that the
subsequent humans are improvements to the first ones invented. In the first and
third scenarios where there is an invention but an existing patent, the grant
of patent would not be automatic. If the inventions are novel, they would have
to be subjected, independently, to the patentability test as discussed above.
Fingerprints as a component of the human body would be considered as
an invention capable of patent protection. The concept of the fingerprints in
itself would not be patentable, as it has existed with previous human beings,
but the process of making or producing the fingerprints may qualify for patent
as long as it is novel/unique with each human being. This would be a process
patent. The product being the different or unique appearance of the
fingerprints in every human being, would be a question for industrial design
protection. Industrial design is a form of IP that is available for any composition
of lines which gives a special appearance to a product and can serve as a
pattern for a product in the industry.
introduces new aspects to an invention to improve its functionalities, those
improvements are considered inventions for purposes of patent protection. In the case of the human body, genetic
mutation is often possible with time and as a response to the environment that
the human is in. In the
1800s, Charles Darwin’s publication On
the Origin of Species presented a systematic explanation on the evolution
Darwin posits that evolution of man (species) is was a result of natural
selection where organisms change over time in accordance with the prevalent
environmental conditions in order to increase their ability to compete survive
and have offspring.
It is therefore possible that the human body has improvements which are natural
and independent of their creation. Such naturally occurring improvements would
not qualify for patent protection.
Where improvements qualify as inventions for patentability purposes, their
registration allows for the extension of the life of a patent beyond the
20-year period. This practice is called evergreening. Evergreening prevents patents
from getting/falling into public domain and results in extending the IP
monopoly granted by the State as long as their improvements are registered as
So where would these patents be
Patent protection is territorial. This means that patents are limited
to the geographical territory/country where a grant has made. Registration must
be obtained in all the countries the owner wishes to trade in. For instance, a
patent issued in Kenya is not enforceable in Uganda. The concept of an
international patent therefore does not exist in law.
There are countries that have adopted one law to govern all of them on
patent registration. Such countries often have one office that receives,
examines and grants patents on their behalf. Here the patent granted by such an
office covers the countries subject to the one law on registration. French
speaking African countries have joined hands to form OAPI that administers IP
rights in the region.
In Europe, there is European Patent Office
that centrally grants patents.
To facilitate the ease of filing applications, countries enter international
and regional cooperation arrangements where an applicant can apply to register
a patent in several countries without having to travel or engage an agent
there. In the international scene, we have the Paris Co-operation Treaty (PCT),
which allows individuals from the member States to apply for a patent in all
its 153 contracting
States. Regionally we have the Harare
Protocol where individuals in member States can apply for a patent
to its 19 contracting States. In the case for PCT and ARIPO applications, the
applications are centrally received and forwarded to each member State to
examine and either grant or refuse an application. The decision is then
communicated through the central office to the applicant. Kenya is a signatory
to the PCT convention and the Harare Protocol.
In the case of the divine deity patent, the application must be made
in all countries where the human being is to be released.
Can we patent human beings
Lastly, it is important to note that section 26 of the IPA Kenya
expressly disqualifies inventions contrary to public order, morality, public
health and safety, principles of humanity and environmental conservation from
patent protection. Human cloning has since its introduction, been consistently
and overwhelmingly opposed for
various reasons including public morality.
Examples under section 26 would include inventions of disease causing
viruses and related methods of production and process of developing or creating
a human body.
In the coming blog pieces, we shall endeavour to trace where we are
going with human creativity. Specifically we shall explore the related IP
questions around artificial intelligence created in the likeness of the
humankind. Feel free to send in your thoughts on the same.
 It is at times argued that trademark protection is not
limited by time as registration of a trademark is renewable for an indefinite
period after it is granted.
 Section 21 (3) (a) of the IPA excludes discoveries
from inclusion as inventions, hence patentable
 OAPI has 17 member States that are signatories to the
Bangui Protocol establishing the regional offices and central registration
framework for Patents in the region. See http://www.oapi.int/index.php/fr/
The focus of this blogpost is on the some of the issues arising around the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. As many may know, the Budapest Treaty was concluded in 1977 and has been open to States party to the Paris Convention for the Protection of Industrial Property (1883). As at 2017, 80 States were party to the Treaty. Interestingly, there are only three African countries that have signed the Treaty, namely Tunisia, Morocco and South Africa.
On 9th February 1994, Kenya Industrial Property Office (now known as Kenya Industrial Property Institute – KIPI) granted the first Kenyan patent for a protein derived from tick larvae suitable for the protection of grazing cattle from ticks. This patent was granted with claims to a method for treating animals, despite an express statutory exclusion from patentability of such inventions.
Dr. Isaac Rutenberg (CIPIT Director) and Ms. Jacquelene Mwangi (CIPIT Researcher) have co-authored a new peer-reviewed article titled: “Do patents and utility model certificates encourage innovation in Kenya?” recently published in Oxford’s Journal of Intellectual Property Law & Practice. A copy of the article is freely accessible for a limited period here. In the article, it is observed that traditional measure of innovation at the country level is the number of patents filed and granted. However it is argued that this may not be an appropriate method for measuring innovation in developing countries in Africa, particularly since many patent offices on the continent are ineffective or inactive. However an exception is Kenya, which has a patent office equipped with a corps of examiners and more than two decades of experience in substantively examining patent applications.
Dr. Isaac Rutenberg (CIPIT Director) and Ms. Lillian Makanga (CIPIT Researcher) have co-authored a new peer-reviewed article titled: “Utility model protection in Kenya: The case for substantive examination” published in the African Journal of Information and Communication in late December 2016. A copy of the article is available online here. In the article, it is argued that a return to substantive examination of applications for utility model certificates (UMCs) would be on the whole beneficial to Kenya’s innovative ecosystem and the authors recommend that such examination be reinstated.
In a recent article by IP Watch titled: “Message To WIPO: Here’s The Assistance We African Inventors Really Need”, a selection of local inventors in Kenya are interviewed on the topic of the recently launched Inventors Assistance Program (IAP) by World Intellectual Property Organization (WIPO). On the whole, it is clear from the article that the call for WIPO and KIPI to do more for poor inventors and small businesses is grounded on fundamental gaps in the understanding of the intellectual property (IP) system and the roles played by the administrators of the patent system internationally and domestically. As a result, crucial questions such as the capacities of patent offices like KIPI to substantively examine any IAP-related increases in patent applications as well as the collation of all patent information for public and inventor follow-on use have not been addressed by the article.
On June 23, WIPO Director General Francis Gurry received Djibouti’s instrument of accession to the WIPO-administered Patent Cooperation Treaty (PCT). The accession document was hand-delivered by Djibouti’s Minister Delegate to the Ministry of Economy and Finance in charge of Trade, SMEs, Handicrafts and Tourism Hassan Houmed Ibrahim. Djibouti’s accession brings the number of PCT members to 150. The PCT helps applicants in seeking patent protection internationally for their inventions, providing a cost effective system. The PCT also helps its members with their patent granting decisions, while providing public access to a wealth of technical information relating to those inventions. The PCT enters into force in Djibouti on September 23, 2016.
The Patent Cooperation Treaty (PCT) administered by the World Intellectual Property Organization (WIPO) assists applicants in seeking patent protection internationally for their inventions, helps patent Offices with their patent granting decisions, and facilitates public access to a wealth of technical information relating to those inventions. By filing one international patent application under the PCT, applicants can simultaneously seek protection for an invention in a very large number of countries.