PATENTABILITY TEST IN KENYA

The World Intellectual Property Organization (WIPO) has defined a Patent as an exclusive right granted for an invention. A further explanation has been given that a Patent provides the Patent Owner with the right to decide how or whether the invention can be used by others and in exchange, the Patent Owner avails technical information about the invention to the public. The Industrial Property Act Chapter 509 of the Laws of Kenya grants this right for a period of TWENTY (20) YEARS from the filing date of the application. This then begs the question, what must one prove to attain these rights over their invention? The first issue that needs to be determined is what criteria are to be used for something to be considered to be an invention under our laws. This criterion is found under Section 21 (1) of the Industrial Property Act which defines it as a solution to a specific problem in the field of technology. Despite this definition, we find that there are things that fall within this definition but which the law does not consider to be inventions. These include discoveries, scientific theories, mathematical methods, schemes, rules or methods for doing for doing business, performing purely mental acts or playing games, methods for treatment of the human or animal body through surgery or therapy among others. Having established what may be considered to be an invention, we now then interrogate inventions that are patentable and those that are not. It is important to establish this from the onset as a guideline to anyone who wishes to patent their invention. Patentable inventions are: - inventions that are new; - involve an inventive step; and - are industrially applicable or are a new use. On the other hand the following inventions cannot be patented: - plant varieties as provided for in the Seeds and Plant Varieties Act; and - inventions that are contrary to public order, morality, public health among others. PATENTABILITY TEST This will be looked on the basis of the patentable inventions. The first to be considered is the NOVELTY TEST which is the consideration of whether or not an invention is new. An invention is thus considered to be new if it is not anticipated by prior art. What the law considers as PRIOR ART is everything that is made available to the public anywhere in the world by means written or oral disclosure, use, exhibition or any other non-written means. The next is the INVENTIVE STEP which involves attempting to determine whether a given invention is obvious to a person skilled in the art having regard to the state of the art at the filing of the relevant patent application. In this regard, a person skilled in the art is presumed to be a skilled practitioner in the relevant field of technology, who is possessed of average knowledge and ability and is aware of what was common knowledge in the art at the relevant date. The final step is that of INDUSTRIAL APPLICABILITY. The Act provides that an invention is considered industrially applicable if it can be used in any kind of industry, including agriculture, medicine, fishery and other services. It is therefore important for a person who wishes to patent their invention to ensure that it meets the laid out criteria. Signed: For: Intellectual Property East Africa LLP