The number of patents registered in Kenya and in Africa at large continues to be significantly low, with the exception of South Africa which registers the bulk in Africa.
Based on the 2009 statistics, only 108 patents were granted in Africa in 2009, with 98 issued by South Africa.
Kenya issued only seven, with the remaining eight being shared between Egypt, Zimbabwe and Morocco.
Other than these five countries, no other country in Africa granted any patents in 2009.
Unsurprisingly, most of the patents were applied for by foreign applicants, with very few originating from Africa.
These are damning statics for the intellectual property outlook in Africa.
Is this an indication of the regard with which Africa holds intellectual property rights, or are there extraneous factors contributing to the dismal number of patents registered on the continent?
Contrary to what one would imagine, most countries in Africa have relatively advanced intellectual property laws.
In Kenya, patents are provided for under the Industrial Property Act, 2001 (IPA).
The enforcement regime is reinforced by the Anti-Counterfeit Act.
A patent is defined as the right of protection granted to an invention which complies with requirements set out in the IPA.
An invention is a solution to a problem in the field of technology. It may relate to a product or a process.
An invention is only patentable if it meets four minimum tests.
It must be new, it must not be in the public domain, it must involve an inventive step, and finally, it must be industrially applicable, that is, it can be made or used in any kind of industry.
There are various inventions which are however not patentable.
These include discoveries, scientific theories, mathematical methods, methods for doing business, and methods for treatment of the human or animal bodies by surgery or therapy.
However, products for use in any such treatment methods are patentable.
One of the contributors to the low number of patents registered in Africa is that undertaking registration can be costly.
The fact that patent protection is jurisdictional thereby requiring an owner to register his patent in each and every country in which they want the patent to be protected further increases the costs.
In addition, patent registration is a complex area of intellectual property protection and the expertise required to prepare documentation required to be filed at the registry is often not easily available in Africa.
Only a handful of law firms and governmental patent registration offices in Africa are fully equipped to handle patent registration from scratch.
For instance, many patents registered in Kenya do not originate from the country.
They are already registered in other more sophisticated jurisdictions and the Kenyan office only handles what is known as “nationalisation” of patents.
In order to register a patent from scratch, one needs to have a fair understanding of the technology behind the patent to enable them draft the complex documents required to be filed at the patent office.
In Kenya, there are various steps involved in the registration of a patent.
These include filing an application for a patent with the Kenya Industrial Property Institute (KIPI).
An application should contain various documents. Unfortunately, preparation of these filing documents is often complex.
The patent application then undergoes various examinations to determine whether it meets the test for patentability.
Because KIPI is not equipped to conduct many of the substantive examinations and searches, it relies on international organisations such as the World Intellectual Property Organisation to assist. Thereafter, the patent is granted for a period of 20 years.
The lengthy time period from the time of filling the patent application to the time it is eventually granted also dissuades many inventors from applying for patent registration.
Enforcing the intellectual property presents another problem.
In order for a registered patent to have any meaningful value, African jurisdictions must have a robust enforcement system to deter third parties from making counterfeits.
Due to the difficulties associated with patent registration, inventors often opt for alternative means for protecting their patents.
The first of this is through trade secrets, that is, by not revealing the codes behind the invention to anyone or to a limited group who are then under an obligation not to disclose the secret.
Licensing the patent
The other alternative is through contract. The contract may contain provisions licensing the patent by the inventor to a third party as well as restrictions on the third party to exploit or disclose it except on specified conditions.
These alternative means are, however, weak and do not confer the same protection as that accorded by patent registration.
A robust patent registration, protection and enforcement mechanism therefore needs to be developed in order for Africa to encourage its people to be innovative.
It is time to re-examine the African position and see whether there are more unique solutions that can boost the intellectual property regime on the continent.
Kiunuhe is a Nairobi -based advocate. The contents of this article are intended to be of general use only and should not be relied upon without seeking specific advice on any matter. The writer accepts no liability for any such reliance.