Nyakundi and Mnjama -Part 2
Historical background to patent information in Kenya
Prior to the coming into force of the Kenya Industrial Property Act, the regulation of patents in Kenya was carried out by the Department of the Registrar General, a department within the office of the Attorney General. At that time Kenya had a system that was wholly dependant on the British patent system. The Patent Registration Act that was in force in pre–independence Kenya lasted for several years without any amendments. The Act basically facilitated the import and use of foreign intellectual property for investment in Kenya, especially for British nationals. The first patent in Kenya was registered on 21 December 1914. The British patent system played the following roles: it supported Kenya by maintaining a close link with the British patent regulations which had no provision for Kenyan needs such as the protection of the rights of Kenya’s industrial property owners and it protected the rights of the British nationals who were patent holders in Kenya. It had nothing to do with the evaluation of patentable works which could be created in Kenya (Ondieki, 2000).
From the above, it is clear that the Act was British centered and had no provision for Kenyan technological information. Thus to get rid of the British bias in the Act, the Kenya Industrial Property Act (Cap 509 of the Laws of Kenya) was passed in 1989. The enactment of this legislation also led to the establishment of the Kenya Industrial Property Office (KIPO), in 1990 through Government Gazette Notice No. 95 of 2 February 1990. The Act provides for the promotion of inventive and innovative activities and facilitates the acquisition of technology through the grant and regulation of patents, utility models, industrial designs and rationalization models. The purpose of the office is to administer the Act under the supervision of the Ministry of Trade and Industry.
Administratively, KIPO is headed by a Director who is answerable to the Permanent Secretary, Ministry of Trade and Industry. The Director is responsible for the overall control, co-ordination and administration of the Office. The Director exercises the powers and performs the duties assigned by the two Acts, namely, the Industrial Property Act (Cap. 509) and Trademark Act (Cap.506) of the Laws of Kenya, and is responsible for their administration.
The Kenya Industrial Property Office has three departments:
- Administration Department, which is headed by the Chief Administrative Secretary . This department has three sections, i.e. General Administration, Finance and Personnel.
- Technical Department, which is headed by the Deputy Director, Technical Services. This department has the following sections; Mechanical/Civil Engineering, Biomedical Services, Computer Services and Documentation and Information Section.
- Legal Department, which is headed by a Deputy Director Legal Services. This department has the Trademark and Service Mark Section and the Legal Section (Laws of Kenya Cap. 509).
The main functions of the Kenya Industrial Property Office, as stipulated in Cap. 509 of the Laws of Kenya are:
- granting of original industrial property rights;
- screening of technology transfer agreements and licenses;
- promoting inventiveness and innovativeness in Kenya;
- acting as a receiving office for international patent applications filed in accordance with Patent Co–operation Treaty (PCT) as well as African Regional Industrial Property Organization (ARIPO) applications for patents and industrial designs; and,
- Instituting infringement proceedings in relation to utility models on behalf of the owners of such utility models.
The Kenya Industrial Property Office works closely with:
- Department of the Registrar General, deals with matters relating to infringement of copyright;
- Kenya Plant Health Inspectorate which deals with the protection of plant variety;
- Kenya Bureau of Standards which ensures that all goods are of a certain standard before being allowed to enter into the local market;
- the Police Department which seizes infringed goods and arrest the offenders and eventually arraign them in court of law;
- the Custom Department which stops entry of infringed works and provides effective border measures that stops infringing works from entering the local market;
- the Department of Weights and Measures, has the duty to ensure that the works imported or released into the channels of commerce are adequately described and what is described is contained in the package.;
Kenya is a member of World Intellectual Property Organization (WIPO) based in Geneva, Switzerland. It has signed and ratified several treaties. These include the convention establishing the WIPO in 1971) The Paris convention for the Protection of Industrial Property in 1883, Nairobi Treaty on Protection of the Olympic Symbol in 1981, Convention of Protection of Phonographs against Unauthorized Publication in 1976, Convention relating to the Programs Carrying Signal Transmitted by Satellites in 1979, Berne Convention for the Protection of Literary and Artistic Works on 12 February 1886 and Patent Co-operation Treaty (PCT) of 1970 administered by WIPO in Geneva, Switzerland in 1994 (WIPO, 1987) Kenya is also a member of the African Regional Industrial Property Organization (ARIPO) based in Harare, Zimbabwe .