Dominic Ogega Mwale, managing partner at Mwale & Company, explains how to patent in Kenya

Kenya is a commonwealth country located in the Eastern part of the African continent. As a vibrant and diverse emerging economy, the country is perceived as Eastern and Central Africa’s investment hub, particularly in the financial, communication and transport sectors, due to accelerated infrastructure development and a stable macroeconomic environment. Kenya’s economy, one of Africa’s most developed, has recorded significant growth largely attributable to its major industries, namely, agriculture, industrial manufacturing, tourism, financial services, mining and energy. The country has a population of about 44 million, largely comprising of a young, energetic, well-educated and technologically literate and savvy demographic.

Kenya operates a centralised national intellectual property office, the Kenya Industrial Property Institute (KIPI), which handles patent, industrial design, utility models and trademark registration. Kenya is also a member of the World Intellectual Property Organization (WIPO), which administers the international Patent Cooperation Treaty (PCT) and the African Regional Intellectual Property Organisation (ARIPO), which administers the Harare Protocol on patents, both of which the country has ratified.

The level of public awareness of IP matters is quite limited and more needs to be done to sensitise people on the value of IP in our emerging economy. The business community has a fair grasp of the value of IP to their businesses, however, there is room for improvement in maximising the potential of their IP. There is a vibrant community of IP practitioners leading the way in conjunction with KIPI in teaching the public and the business community to better protect their rights and interests in their IP.

KIPI continues to play a key role in promoting patent protection in Kenya by constantly improving its services through engaging in training under WIPO and through inter-office cooperation and exchange programmes. Located in Kenya’s capital city, Nairobi, KIPI also plays a pivotal role in regional IP protection through ARIPO, as a receiving office.

Filing for patent protection

There are three routes through which an applicant may receive a patent in Kenya. The first and most direct route is a national application at KIPI. This simply entails the applicant preparing an application under Kenyan national law for patenting. The typical international tests for patentability (ie, novelty, usefulness and non-obviousness) are applicable. The second route would be under a PCT application designating Kenya. A third route would be under an ARIPO application designating Kenya. This may be done through the IP office of a member state (for example, KIPI for Kenya) or at ARIPO headquarters in Harare, Zimbabwe. Therefore, to achieve the goal of being both cost effective and efficient in patenting, one must first have a clear perspective on their regional or indeed global patent goals.

A direct application is usually the best route for an applicant interested in patent protection in Kenya as the costs are limited to KIPI’s official fees and annuity payments. Foreign applicants will need to retain the services of a patent attorney duly registered with KIPI to process the application fully.

KIPI is doing a terrific job in handling patent filings in Kenya through aggressive implementation of examiner training (to international standards) and public sensitisation on IP rights protection. KIPI is a very efficient IP office and conducts its affairs in a very professional and proficient manner.

With the keen interest of multinationals in the East African region, we expect greater emphasis to be placed on the promotion of IP and protection in Kenya through KIPI. Some potential key areas for improvement include:
● Increasing the numbers of qualified patent examiners to speed up the examination process;
● Increased regional participation and integration by KIPI in regional IP endeavours such as ARIPO;
● Policy frameworking and engagement with other arms of government to promote sensitisation on the value of IP to the economy; and
● Greater sensitisation of the general public on the value of IP protection and sensitisation on the adverse effects of counterfeit goods to public health and safety and the economy.

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