Protection of Plant Breeders’ Intellectual Property Rights in Kenya

Kenya was the first country in Africa to join Union internationale pour la protection des obtentions végétales (UPOV) in 1999. Subsequently, it domesticated the 1961 Act of the UPOV Convention in the Kenya Seed and Plant Varieties Act Cap 326. A new plant variety refers to a previously known group of plants that can be consistently distinguished from any other similar group of plants, generation after generation. These new plants are not discovered in the wild, but are the result of human plant breeding efforts.

Article 11 of the Constitution of Kenya recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and includes science and indigenous technologies and intellectual property (IP) rights of the people of Kenya within the scope of elements of culture that are recognised. The Constitution goes further and states in Article 11(3) (b) as follows:

“Parliament shall enact legislation to recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya”

Plant breeding is a very important economic activity as new varieties that are adapted to the environment in which they are grown increase the choice of healthy, tasty and nutritious food while generating a viable income for farmers. However, successful plant breeding requires great skill and knowledge in a process that can take up to 15 years to introduce a new plant variety to the market. Usually, not all new plant varieties are successful. Sustained and long-term breeding efforts are only worthwhile if there is a chance to be rewarded for the investment made, which is why plant variety protection (PVP) is an important system for plant breeders.

For eligibility for protection of the plant breeder’s rights, the following requirements should be met:

  • The plant should be unique from any other plant in existence. There must be at least one difference in its composition or production. When relating the plant with the other plant which is approximately similar, they must have at least one different thing regarding the plant.
  • The plant must be new. It can be considered new either by having been created in a nursery or greenhouse or a unique one because of its discovery nature.
  • The newly discovered plant that is created by an individual can enter into the patent application process if the person who first discovered or created it.
  • During the plant patent application, other people in the plant industry must not have thought of it as an obvious invention.
  • The plant should not be previously sold before the patent application.
  • The plant should not be available to the public for more than one year before the patent application. This one-year limitation includes the sale of the plant, but also the description of the plant in a publication, such as botany journal.

Requirements for application for NPV protection in Kenya:

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