Without intellectual property protection, it has been observed in many quarters that innovation cannot pay off handsomely, in the long run.
In other words, in order to better and longer enjoy the fruits of our intellectual labors, we need intellectual property rights, which, according to such bodies as the Kenya Intellectual Property Institute (KIPI), are laws protecting “the creations of the human mind”.
Such laws have led to the formulation of definite and strict criteria for protecting intellectual property (IP): is it an invention? How do we know? How do we protect it? How do we monetize the same? The same questions apply strictly to other ‘elements’ of an IP such as copyright, utility models, industrial designs, trade and service marks, plant breeders rights, trade secrets, geographical indications rights, topography of integrated circuits rights, and so on.
The rights or proctections available for a work of imagination, incidentally, become active upon publication or making available to the public of such a work. In the case of patents, utility models, industrial designs, trade marks, plant breeders rights, the laws take effect the moment such IPs are registered and certified.
But it is hugely important for innovators and inventors to clearly distinguish between various IP rights—in most cases before they even attempt at invention and innovation. Otherwise they run the risk of seeking protection for what is not patentable or copyrightable— normally without formal redress. So a brief discussion of rights applicable to each type of IP is necessary and is undertaken below:
To begin with, ‘patent’ laws apply, on condition that an invention is new (novel), involves an “inventive step”, is an industrially applicable product or process, to control who makes, uses, sells, offers to sell, and/or imports the patented invention, as well as offer the patentee an opportunity to seek remedy against infringement.
Much more clearly, what is patentable in Kenya is an invention which is a solution to a specific problem in the field of technology in the form of a product (such as a vaccine, drug, keyboard, mouse) and/or process/method detailing a sequence of steps that complete a task or accomplish a result (for example a process of making tea).
It therefore follows that discoveries, scientific theories, mathematical methods; schemes, rules and methods of doing business (though some countries allow), performing purely mental acts, playing games; methods of treatment of humans/animals by surgery or therapy (though some countries allow); ideas do not qualify for patent protection here in Kenya. Otherwise, the period of protection is normally 20 years, subject to annual fees.
For ‘utility models’—innovations that give some advantage, saving or technical effect, or improvements that may not qualify for patent— protection is available for 10 years, not renewable. An excellent example of a utility model is a combined toothbrush and a tongue cleaner.
What is protected under ‘industrial designs’ includes and is limited to special appearance of products (articles) in terms of shape, configuration, pattern, ornamentation; what makes an article attractive and appealing. Also whether it adds to the commercial value of a product and increases its marketability. The requirements call to mind such things as display stands, perfume bottles, ceiling boards, among others.
Moreover, as we shall shortly discover, even a solution to a specific problem especially in the field of technology, proposed by an employee for use by an enterprise, relating to activities of the enterprise but which has not been used by that enterprise before, can qualify for protection; upon request for a ‘technovation’ certificate.
The ‘trademarks’ law covers “distinctive signs used to identify goods or services, and to distinguish goods or services of one enterprise from those of others”(Trade Marks Act CAP 506). As a result, words, devices, combinations of letters with devices, three-dimensional images, slogans and numerals can conditionally qualify for protection.
Hence if a trademark is protected, the following advantages accrue to the owner: product identity is preserved, a trader’s business (goodwill) is protected. Protection of the consumer against likelihood of confusion and deception, prevention of free riding, particularly in relation to quality —for example SONY/SQNY, as well as promotion of orderly marketing to the eventual effect of market efficiency.
All the above being facilitated by the trademark owner’s exclusive right to use the mark in relation to the goods or services, and prevent third parties from using identical or resembling trade mark.
Action for breach of confidence in relation to formulas, patterns, processes, methods, compilations, customer lists are covered under the ‘trade secrets/confidential information’ law.