Kenya, the Ministry of Health
continue to ardently conduct tests, treat and otherwise manage the impact of
the virus. Additionally, the President outlined various
actions to be taken during this crisis including controlled
movement to and from the affected areas mainly metropolitan areas. Other recommended
measures include social distancing, washing hands and staying home.
These measures require social and behavioural changes from the people.
Below, we take note of various contributions by
intellectual property during these times and particularly in influencing the
people’s response to the crisis. These measures are mainly by private persons
as IP is a private right.
“The World can be happy
that scientific resources have been mobilized so quickly without capitulating
to false IP claims…”
On 29th March
2020, The Ministry of Health (“MoH”) indicated that the government had
initiated plans to manufacture Protective Personal Equipment (“PPE”) materials
locally for self-sustainability.
This pronouncement intimated the
possibility of enhancing local manufacturing capacity. The government’s intervention
followed the interim guidance issued by World Health
Organization (“WHO”) on the 27th of February 2020 on the rational
use of PPEs.
in the global supply chain of PPE, particularly for medical masks and
respirators; gowns and goggles calls for a local intervention. This is perhaps
to guard against the potential outcome of an overrun of COVID 19 patients in
Kenya, likely to overwhelm our medical systems.
Rivatex East Africa
Limited and Kitui County Textile Center (“Kicotec”), among other local
manufacturing companies, have been earmarked to start the manufacturing of PPEs
Several aspects of local manufacturing affect Intellectual
Property Rights inter alia Patents,
Trademarks, Trade secrets, Utility Models and Industrial designs, which ought
to be leveraged for strategic advantage in product development.
create monopolies for rights holders thereby putting them in a strong position
to set prices.
Such prices have made the required products costly hence inaccessible. The
monopoly contributes to the inaccessibility of medicines. Remission of
royalties and removal of restrictions on generic competition, leads to
affordable medicines through reduced prices, sometimes by 99%.
Trademarks are source
identifiers which influence consumer decisions.
A trade secret is confidential information that gives a company an economic
advantage over its competitors and is often a product of internal research and
Utility models are patent-like as they protect innovations through a cheaper
and easier to obtain and maintain process.
They have a shorter grant lag, less stringent than patent requirements and a
shorter protection period as registration expires at
the end of the tenth year after the date of filing and is not be renewable.
Industrial designs are
concerned with the appearance of a product as they protect the ornamental, or
aesthetic aspect of a useful article that can be reproduced in large quantities.
They are particularly important as we continue to see articles such as face
masks and other PPEs appealing to the eye and feel.
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.
As readers know, we hosted the 2nd Biennial Strathmore Intellectual Property (IP) Moot Competition 2016 which took place between 8th and 9th July 2016 at Strathmore University. Unlike the inaugural Strathmore IP Moot that was only open to Law Schools in Kenya, this year’s IP Moot had participating teams drawn from several universities in East Africa including Africa Nazarene University, Jomo Kenyatta University of Agriculture and Technology, Kabarak University, Kampala International University, Kenyatta University, Kisii University, Moi University, Riara University, Strathmore University, Uganda Christian University, University of Nairobi and University of Dar es Salaam.
This blogger took part in the moot and live-tweeted the highlights including photos using the #StrathIPMoot hashtag. This blogpost is a brief summary of my general observations of the moot. All the pictures are available on our facebook album here.
The World Intellectual Property Organization (WIPO) Standing Committee on the Law of Patents (SCP) was established in 1998 as a Member States’ committee (IGOs and NGOs participate as observers). SCP Sessions at WIPO are typically made up of about 90-100 Member States, 5-10 IGOs and 25-30 NGOs. SCP is a forum to discuss issues, facilitate coordination and provide guidance concerning the progressive international development of patent law, including the harmonization of national laws and procedures. It is an important forum that deals with a cluster of issues rather than each issue in isolation. This led to the conclusion of the Patent Law Treaty (PLT) in 2000 and between 2000-2006, it has facilitated negotiation of the draft Substantive Patent Law Treaty (SPLT).
‘…Least Developed Countries will not be obliged, with respect to pharmaceutical products, to implement or apply sections 5 and 7 of part II of the TRIPS Agreement or to enforce rights provided for under these sections until 1 January 2016, without prejudice to the right of least developed countries to seek other extensions of the transition periods….’- Paragraph 7, Doha Declaration on the TRIPS agreement and public health (2001).
The Agreement on Trade Related Aspects of Intellectual Property came into force on 1st January 1995 after the Uruguay round of negotiations and the coming to birth of the World Trade Organization. The agreement has been credited with establishing global standards of intellectual property protection. It has also been criticized for failing to balance its competing goals of protecting and promoting innovation and catering for the public health needs of developing and least developed countries.
This year, TRIPS commemorates its 20th year in influencing aspects of intellectual property and trade in the world. The past years have seen heavy debate on pharmaceutical product patents and access to medicines for developing and least developed countries. This heavy debate led to a waiver of implementation of drug patent provisions of TRIPS to 1st January 2005 for developing countries and 1st January 2016 for least developed countries.