Understanding Kenya’s technology laws

With patent wars erupting between mobile companies across the world, the time has perhaps come for people to acquaint themselves with the relevant legislation innovators in the local ICT industry must use when patenting their creations.

The battles between Samsung and Apple may have hit global headlines, but Kenya is seeing its own legal cases, with mobile network operator Safaricom taken to court over its M-Shwari mobile banking platform by Faulu Kenya, a microfinance institution that claims ownership of the idea.

The Kenya Industrial Property Act 2001 is perhaps the most vital legal legislation for innovators in the local ICT industry looking to patent their creations. The act establishes the Kenya Intellectual Property Institute (KIPI), a parastatal under the Ministry of Trade and Industry charged with administering property rights, provision of technological information to the public, promoting inventiveness in Kenya and provision of training on industrial property.

Prior to the current Act, the institute existed as the Kenya Intellectual Property office, established in February 1990 under the industrial property Act, Cap 509 of the laws of Kenya.

The Industrial Property Act was passed with the objective of the promotion of inventive and innovative activities, to facilitate the acquisition of technology through the grant and regulation of patents, utility models, technovations and industrial designs.

Key highlights include a declaration that the patent shall belong to the inventor, with any inventions by employees under contract belonging to the employer. However, the law grants dual ownership between the employer and worker.

A clause requiring the employer to use the invention within a year failure to which the ownership automatically transfers to the employee was scrapped.

Where the employer has ownership, the law further states that “the employee shall have a right to equitable remuneration taking into consideration his salary and the benefit derived by the employer from the said invention.”

In any patent, the inventor must be named, unless in special cases where he requests to remain unknown. Once a person has obtained a patent, he has the right to obtain an injunction in case of infringement or restrain continued use of his patent whereas it is violated. The owner can also seek damages uses his patents without authorization after notifying the entity of existence of the patent.

Under the Act, an invention qualifies for a utility model certificate if it is new and industrially applicable. It also recognizes industrial designs described as any composition of lines or colors or any three dimensional form, whether or not associated with lines or colors.

On ‘technovations,’ described as solutions to specific problems in the field of technology, the employee of the enterprise (technovator) owning the innovation is entitled to a technovation certificate to recognize his role, with the employee entitled to more benefits where the employer communicates or gives the innovation to a third party.

The Act describes infringement as any unauthorized utilization of a patent. Any disagreements of this nature will be heard by the Industrial Property tribunal as the final say of whom members shall include qualified advocates and experts in the field of industry, science and technology.

Other laws that concern fields of technology include Trade Mark Act Cap 506, Copyright Act 2001 and the Anti Counterfeiting Act 2008.

Although the law seems suitably crafted to tackle technology disputes, experts warn that advancements in technology could create newer uncertainties.

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