Ahead Of WTO Summit In Nairobi, Kenya’s IP Laws Come Under Scrutiny

NAIROBI, Kenya- Ahead of the World Trade Organization (WTO) Ministerial Summit in Nairobi, Kenya’s intellectual property laws are coming under scrutiny over what experts see as their inability to protect economic projects and inspire innovations.

The summit, scheduled from 15-18 December, is the first in Africa and is a culmination of WTO’s 20^th anniversary celebrations. It is expected to tackle subjects such as competition, e-commerce, investment and food security, among other broadly IP-related issues.

But IP lawyers, activists and inventors here say they are increasingly getting concerned over the inability of Kenya’s IP laws to protect budding economic projects and innovations.

Recently, the country unveiled information and communication technology (ICT) labs and incubation centres to stimulate innovations. In the centres, mainly in Nairobi, technology entrepreneurs converge to discuss new ideas and built innovations.

Generally, those who find space in the hubs are young people, some who own innovation companies. But many do not know where they can access IP services or don’t even trust the services. Patent or copyright on innovations is hardly attempted, as young innovators have little confidence with the rigid and bureaucratic process. That has meant the innovators keep inventions secretly locked in their computer hard drives.

This is not the supposed to be the case, according to Fredrick Omukubi Otswong’o, the Jomo Kenyatta University of Agriculture and Technology (JKUAT) patent drafting officer.

“Strong and efficient IP laws should assist economic development in a country. They give investors the confidence to invest in a country, transfer technology, licence their IPRs [intellectual property rights] and establish industries in the country,” he said.

According to Otswong’o, the Kenyan IP system has not proved that it can efficiently protect systems such as GSM (Global System for Mobile Communication), internet and computer applications. The result is a loss for the country in foreign investment, among other benefits.

“In Kenya, investors prefer to secure their IPRs via the regional route at ARIPO [Africa Regional Intellectual Property Organization] in Zimbabwe due to lack of clarity within our patenting system,” he said.

Kenyan IP law is in four parts. There is a law dealing with patents, one for copyrights, another dealing with trademarks, and one dealing with utility models, industrial designs and design rights.

“These laws are weak in the sense that they cannot be effectively implemented. They also lack resources,” said Otswong’o, adding that weak IP laws are expensive to any national economic development.

He explained that Kenyan IP laws mirror the United Kingdom model, which he view as stringent and unfriendly to transfer and adaption of patented technologies.

“The patent law, for instance, forbids patenting of business-related methods but does not define what business methods are, just like the UK laws,” said Otswong’o.

“In the USA, business-related inventions including software, datasets and applications are patented, including Facebook and Whatsapp,” he said.

Yet in Kenya, software related to technology is interpreted in business terms, while the laws forbids patenting of business-related methods, according to the expert.

“This is totally wrong and unfair for young entrepreneurs who come with new innovative platforms that drive Kenya’s economy,” argued Otswong’o.

Still, Kenya like most developing countries lacks the capacity to understand and deal with the intellectual property rights issues, the expert said.

“Within the government agencies, there is a capacity to examine and evaluate intellectual property applications, but the industry has no capacity to execute protected IP rights,” said Otswong’o, who is a patent agent and former patent examiner.

Since their unveiling, the laws have met individuals’ needs, according to Joshua Kiarie, an IP lawyer in Nairobi, but they are not comprehensive.

“The laws may not be adequate for every innovation, given Kenya’s recent technological advancements. They would require extra input, but I think they are not completely obsolete,” said Kiarie.

Amid a surging economy, in the Kenya innovation centres, technological innovations have been on the upswing. The leading centres include iHub, a hub in Nairobi, where technologists, investors, tech companies and hacker converge in an open space to invent. Nailab, another centre, offers entrepreneurship programs with focus on growing innovative technologically driven ideas. M: Lab East Africa also in Nairobi offers mobile start-ups, a platform to nurture innovative solutions and business models.

While the centres attract brilliant and young innovators such as college and university students, insecurity, cost burden and lack of knowledge about IP laws are some of the glaring challenges. Some news reports indicate that some innovators may have lost their hard-earned innovations to big companies. The companies had allegedly acquired the innovation in pretext of funding their development.

Kelvin Macharia, one such innovator at the University of Nairobi, confirms this.

“There is no clear information how we can patent our innovations, the cost is also prohibitive and the innovators do not trust the laws,” he said.

Macharia has invented an organic pesticide he calls Aleomexhot. The pesticide is combination of three plants, which he does not reveal.

“The government should formulate policies that are stringent enough to protect Kenyan innovations. This will motivate innovators to patent and protect the innovations,” said Macharia.

He suggested that the government could reduce or waive registration fees for patents as a way of motivating the inventors.

“The waiver can last for two years, after which the inventor can pay for the IP. The bottom line is to encourage innovations and inventions,” said Macharia.

At the same time, with the weak laws, disputes over trademarks have become more frequent among companies, especially those in the financial and mobile service sectors. The disputes have ended up in court, costing companies substantial amounts of money.

In July of this year, Kenya’s two main mobile service providers, Safaricom and Airtel, headed to the High Court to settle a dispute on the trademark for a mobile phone money transfer service, known as M-Pesa.

The same month, in another dispute, the UK’s Vitabiotics Limited stopped Kenya companies Ripples Pharmaceutical and Metro Pharmaceuticals from using their trademarks.

“The rise in trademark disputes reflects weakness in some regulations which leave a lot of room for misinterpretations by various parties including examiners,” said Otswong’o.

How weak the laws are became evident recently when it was alleged that Japan had patented the Kiondo traditional basket, and a British company attempted to patent the Kikoi (Kikoy) fabric in 2006.

Kiondo is traditional basket indigenous to the Akamba and Agikuyu tribes of East and Central Kenya. It is viewed as part of the communities’ indigenous knowledge.

But Kenya failed to commercialise the basket as a patent and as a design, after the product patent and design window shut in the line with law which allows a 20-year patent life. When this happens, the patent falls in the public domain and it can be freely used, copied and adapted by others. This is what Japan is doing.

The British company attempted in 2006 to register a trademark for textile goods for Kikoy, also known as Kokoi, a traditional handwoven fabric dating to the first century AD. The request was rejected.

The Kenya Intellectual Property Institute (KIPI) says that the two cannot be patented anywhere because they have exceeded the 20 year non-renewal patent period.

“There are many other examples of Kenyan IPRs lost to other countries usually due to lack of awareness or resources to protect them locally,” said Otswong’o.

In Mombasa, IP lawyer Christine Kiplagat says most Kenyans are unaware of the laws existence.

“I think the problem is lack of sensitization,” said Kiplagat.

Still, the experts say the lawyers do not get sufficient training in IP matters, while researchers do not incorporate IP management in their research work, the experts say.

Civil society groups have been steering for the amendment of patent law, especially in the area of medical drugs needed in areas such as management of HIV and AIDS. A rallying call has been the review of the law to allow parallel importation of essential drugs. The groups have also pushed for stronger laws to protect indigenous knowledge and cultural expressions.

Meanwhile, in a move aimed at strengthening the IP laws, the Kenyan government has over the years established organisations, including KIPI, to deal with patents, trademarks, industrial designs, tech innovations and utility models.

It established the Kenya Copyright Board (KECOBO) to deal copyright and related rights, Kenya Plant Inspectorate Service (KEPHIS) to ensure quality of agricultural produce, and Anti-Counterfeiting Agency (ACA) to handle the issues related the infringement of trademarks, among others.

“What the government has ignored,” said Otswong’o, “is continued investment in IP agencies to raise awareness, build capacity within research and development institutions and universities, and establish a strong IP enforcement regime.”

 

Image Credits: Fredrick Nzwili