Laws offer tech innovators short end of the stick

I recently attended a very interesting conference on protecting information communication technology (ICT) innovations using intellectual property law.
The main theme of the event was whether or not to patent ICT creations like software in Kenya.

The environment is very conducive for young technopreneurs. Not only has ICT been recognised as one of the pillars of economic growth in Vision 2030 but many institutions of learning offer more specialised training in the field, which match global standards.

Our institutions produce many upcoming technopreneurs each year and most of them would want to venture into self-employment. However, they may face a number of challenges.

One of the hurdles is inadequate finance and venture capitalists. Most financial institutions shy away from offering loans pegged on a business proposal, especially where the entrepreneur does not have previous source of income.

Most lenders would want to go the collateral way and give loans in exchange for land as security. Rarely would a lender be ready to disburse funds against a patent.

Venture capitalists in the innovation sector are very few. So what we have are many youth with brilliant innovations and little access to financing.

The technopreneurs end up disillusioned, yet with support, they can make the most out of their innovations. Perhaps it’s for the government to help them through the various initiatives like the Youth Fund and Vision 2030, among others.

A second challenge technopreneurs face is lack of specialised advice on their creations. From the conference, what came out was that there are few intellectual property lawyers and inadequate case law in the field.

Other than lawyers, other experts like brand valuers and patent agents who would help innovators protect their creations are hard to come by.

Wrong legal counsel could also make one lose innovation to someone else who has used a lawyer with the technical expertise in intellectual property law. However, the biggest challenge is the regulatory system. A computer programme can either be patented or registered under copyright law.

When it comes to patenting, the requirements for one to be granted are that it must be new, not obvious and of some commercial use.

Registering a patent takes ages — almost two years — to complete. The nature of technological innovations is such that after two years it may be obsolete.

Patenting also remains a challenge to technopreneurs in Kenya because most software innovations offer business solutions. For example, the mobile money transfer system is a business process, according to the law.

The Act excludes business processes from patenting. That is to say, it would be difficult to patent a new software in Kenya due to the exclusion clause. The law was amended in 2001. Prior to this, computer programmes were specifically excluded from patents.

After the 2001 amendment, the Act remained silent on the exclusion of software meaning they can be patented as long as they do not fall under other exclusions. However, in the US it is possible to patent a software for a business process.