At the turn of the 21st Century, Kenya enacted the Industrial Property Act (the Act) with the aim of; increasing and promoting innovation in the country by offering traditional forms of intellectual property (IP) rights such as patents and utility models. Prior to the Act, Kenya was a signatory to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement). The Act largely extrapolates the TRIPS Agreement into Kenyan law. Innovation plays a critical role in economic growth and in solving social and commercial problems. As such, Kenya sought to adopt certain world standards applicable to IP.
In recent years, the number of patents in a country has been used to measure innovation (it is assumed that the higher the number of patents, the higher the level of innovation). It is important to note, however, that the patent system is not an inexpensive solution. Such a standard may therefore benefit from further analysis else we may be relying on a faulty measure.
Defining Patents
A patent is an exclusive right granted for an invention. In this case, an invention refers to a product or process that provides a new way of doing something, or offers a new technical solution to a problem.
Patents allow the owners of inventions to reap commercial benefit. Their exclusive rights allow them to decide factors such as who may or may not use their invention. They can also choose to license or sell it to other people. However, an inventor can only gain such rights by applying to their patent office first.
Without an application and a grant, an invention does not benefit from patent protection. This means that an inventor can lose out on commercial benefit and, in more severe cases, their invention can be appropriated (taken/used without their permission) leaving them without any avenue for recourse.
Examples of patented products include:
The computer mouse & the self-driving car
The Problem
Chart illustrating patent share by continent; 2018
In 2018, there were 3,326,300 worldwide patent applications. Of those, Africa accounted for 17,000 applications; a mere 0.5%. Kenya accounted for 286 of the total applications in Africa.
These numbers suggest that Africa is underperforming with far less patent applications than the rest of the world. Per the measure explained above, this is usually translated to mean that Africa is far less innovative and inventive than the rest of the world.
Various reasons have been provided to account for the low patent applications and grants in Africa. One view suggests that Africa has not industrialised to the point that innovation is encouraged and harnessed. It states that African countries lack the necessary infrastructure, policies and human resources that would drive innovation and enable Africans to engage in and benefit from innovation. This is based on the idea that there is a correlation between the lack of economic development and the lack of innovation.
In this author’s view, this approach, though plausible on the surface, fails to address the full scope of the situation. I suggest, as others have, that Africa has no shortage of innovation. Instead, what appears to be a lack of innovation is a reflection of the fact that most intellectual property in Africa, including patentable inventions, remain unregistered.
In 2018, the African Regional Intellectual Property Organisation (ARIPO) stated that despite the increase in numbers of patent applications in recent years, most innovators and inventors in Africa do not file patent applications and instead, opt to operate the invention without formal protection. Even in countries such as Kenya and Nigeria where the number of patent applications are relatively high in comparison to other African countries, a greater number of innovations are not registered.
Answering the “Why?”
It may be argued that Africans do not register their intellectual property due to the expensive nature of the patent filing system. Most start-ups find it too burdensome to incur the costs of such an application and would rather channel the money into other activities that ensure the survival of the business.
Furthermore, there is a scarcity of lawyers and experts that draft patent applications. In most western countries, patent lawyers have a science background as well as a legal background. This is due to the technical nature of drafting a patent application that involves, for example, description of dimensions. In Africa, such lawyers are mainly found in South Africa and even then, they are few in number. Consequently, the cost of hiring such an expert is expensive, starting from as much as USD 2500 (more than Ksh. 250,000), a number often too high for most start-ups in Africa.
In countries such as Japan and the US, where patent offices are flooded by applications every other week, there is greater access to capital that enables start-ups to seek the necessary expertise and protection for their innovations. In contrast, African start-ups struggle to secure capital and in the case that they do, patent applications are still costly and cumbersome.
The effect of this is that innovators are more likely to opt for inexpensive forms of protections such as Non-Disclosure Agreements (NDAs). NDAs are contracts that ensure information is treated as confidential and is not used without the consent of the owner. However, NDAs are less effective than patents as the latter offer exclusive rights.
In essence, there are several financial hurdles that African start-ups face when trying to register their patents. The result of this has been that African start-ups simply do not register their inventions. In the long run, this has resulted in the low number of patent applications across the continent meaning that many inventions remain vulnerable.
An Opportunity to Explore Alternatives
In recent years, aid has come from companies willing to offer free expertise to innovators helping them gain patent protection. For example, through the 4Afrika Program, Microsoft has been investing in start-ups and SMEs in Kenya with the aim of enhancing technological innovation. Although this is a useful solution, it does not resolve the underlying problem; the expensive nature of patents in Africa.
Ultimately, it may be time to review the application of the western-style patent system and its effectiveness in Africa. It is clear that the current patent filing system is not the best-suited system for Kenyans and other Africans. Despite the benefits of having a registered patent, it cannot be deemed a plausible solution if it is, at the same time, inaccessible to most Africans due to its high cost.
Dickson is a 4th year student at Strathmore Law School. He works in the Entrepreneurship Unit of the Strathmore Law Clinic.
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