What is a patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

WIPO (World Intellectual Property Organization)

Five requirements for obtaining a patent:

Patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner’s consent. The patent could cover a composition (a mixture of substance or compound), production process, machine, tool, new plant species, or an upgrade to an existing invention. To be patentable, the invention must be:

  • A patentable subject matter
  • New (novelty requirement)
  • Inventive (Inventive step requirement)
  • Useful (utility aspect)
  • Not have prior use

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HOW TO REGISTER A PATENT IN KENYA

Have you or your employees invented a new technology (could be a machine, a process of doing something or even a product or improvement of an already existing technology) and are wondering how to protect it from potential infringers before placing it on the market? If yes, then this is the article for you! Let us first understand what a patent is and what it has to do with your invention here in Kenya.

In simple terms, a patent is an exclusive right granted to any invention that provides a new way of doing something or offers a new technical solution to a problem. Famous patents include the computer, light bulb, telephone, elevator, radio, TV, vehicle among many other technologies. A patent owner has the right to decide who may use the patented invention. For example, Thomas Edison, the inventor of the light bulb was granted a patent to the light bulb invention and was able to commercialize it and decide who could use the invention and who could not.

Basically, patent protection means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner’s consent.

What can be Patented?

Any process, product, chemical compound/composition, machines/apparatus or device can be patented. There are however inventions that are EXCLUDED from patent protection i.e.

  1. Discoveries or findings that are products or processes of nature where mankind has not participated in their creation (including, plants and microorganisms).
  2. Scientific and mathematical methods and theories.
  3. Schemes e.g., investment, methods of bookkeeping or insurance schemes.
  4. Business methods e.g., credit or stock methods
  5. Rules for playing games (The game’s equipment may be patentable).
  6. Methods for treatment of human or animal body by surgery or therapy, as well as diagnostic methods; except products, in particular substances or compositions or apparatus for use in, any of those methods or;
  7. Public Health-related methods of use or uses of any molecule or other substances whatsoever used for the prevention or treatment of any disease which the Minister responsible for matters relating to health may designate as a serious health hazard or as a life-threatening disease.
  8. Mere presentation of information.
  9. Non-Functional details of shape, configuration, pattern or ornamentation

Benefits of Filing a Patent

  1. Patents grant you protection over your invention and give you the freedom to operate, thus you can go to events, exhibitions, or industry trade shows to display it without fear.
  2. It also shields you since no one else in that market is allowed to make, sell, use or distribute your invention without your express approval.
  3. Patents improve your market power, provide your business with a competitive edge, and help you build a strong brand entity.
  4. They also generate income through licensing of the patent to other parties or sales.
  5. Patents may also serve as collateral for bank loans.

Requirements for Patent Registration in Kenya

In order for an invention to be patentable, it must meet the following THREE criteria:

  1. It must be new (no one, anywhere, should have invented it before)
  2. It must involve an inventive step (that is, it shouldn’t be obvious to a person skilled in the relevant field of technology)
  3. It must be capable of industrial application/useful

Process of Patent Registration in Kenya

Due to the complexity of the Patent registration process, the first step required to be taken by any person or business desiring to register a Patent is to seek the services of an IP Agent, usually a lawyer or an Intellectual Property expert. The whole process takes an average of 2 years. The stages include:

Patent Search

A Patent search is conducted to find out whether an invention meets the Criteria of novelty (newness) and to find out whether there are documents that can be used to challenge the validity of the patent, once granted.

Filing of the Patent Application

After a search, the Application is filed. Upon receipt of the application, it is accorded a filing date if it contains the name of the applicant, description, and claims. The documents required during filing include:

  1. a request for grant of a patent;
  2. a description of the invention;
  3. one or more claims;
  4. one or more drawings of the invention (where necessary);
  5. an abstract;
  6. appointment of an agent form; and
  7. Payment of the requisite fees

Formal Examination

A formal examination is carried out to check whether the application meets the set requirements. If there are any defects, the applicant is invited to correct the defects. The Applicant will have 60 days to comply. If he/she does not comply, the application is rejected.

Publication

After the expiration of 18 months from the filing date, the application for grant of patent is published in the Kenya Gazette or Industrial Property journal.

Substantive Examination

If the application for a patent satisfies the formal requirements, the applicant is notified and is required to submit, within 3 years from the filing date of the application, a request for substantive examination of the application.  Where no request is made within the 3 years, the application is deemed to be abandoned.

Grant of Patent

After substantive examination, unless an application is rejected, a patent is granted and the applicant is issued with a certificate of grant of a patent. A patent is granted for a period of 20 years from the filing date.

Interested in protecting your Invention in Kenya? Talk to us!

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