Over the last few years I have noticed an increase in the number of intellectual property cases in our law reports.
This means that there is a significant increase in intellectual property litigations as compared to the past, especially on copyright infringement as well as a bit of industrial design disputes.
The parties are usually two businesses fighting over the subject matter save for one or two cases where individuals have been involved. I attribute the rise in litigation to increased awareness of intellectual property laws by the public and legislative framework.
Most of our intellectual property laws were amended in 2001. There is also increasing speciality among lawyers in in the field. Unlike in the past, there are a number of courses and training on intellectual property.
However, we are yet to witness significant patent litigation perhaps because the level of patent registration remains low.
One of the indicators of the level of innovation in a country is the number of registered patents. Many say that this is a flawed system of measuring innovativeness because not all inventions are patented.
Also internal inefficiencies in the patent registries could mean that not all deserving innovations will make it to the patent level. The US has a liberal patent system, which means that it is possible to patent your innovation more easily.
To date Kenya does not allow software patents while the US does.
On intellectual property litigation in Kenya, I have noticed that several software companies and telecoms are engaged in a lot of related cases.
A firm like Safaricom is facing a lot of IP litigation perhaps due to the nature of its business and that dealing with innovators is almost inevitable.
Most of the intellectual property litigation remains founded on trademarks, though we have a few copyright cases and industrial designs as well.
The latest decisions on IP litigation will inform a lot of businesses on what to anticipate when it comes to intellectual property. One of the informants of business strategy should be decisions made by the court regarding that industry.
For example, when the court rules on an issue touching on your business environment, then that decision forms part of the law if it is made by a higher court.
In much the same way, decisions that the courts will make on intellectual property litigation should help your business in making its strategy.
One of the things I would advise businesses to do, stemming from the court decisions, is to come up with an IP policy. The policy will dictate relationship among staff members and even third parties on how the IP will be owned.
The marketing department is another one that may be significantly affected by an IP policy as some of the infringement especially when it comes to brands are mostly done by the marketing department.
When your business outsources intellectual property there needs to be a clear policy on ownership between your business and the third party.
Mputhia is a partner with Muthoga Gaturu Advocates. [email protected].