POLICY ON INTELLECTUAL PROPERTY IN KENYA

Job Isaac Jondiko Maseno University P.O.Box 333 Maseno, Kenya

What is IP
Intellectual property (IP) n creation of the human mind i.e. human intellect n intangible property n translated into tangible products.

What is IPRs?
legal protection of IP n range of rights associated with n inventions, discoveries, writings, product designs, and other creative works.

Components of intellectual property

Two Categories of IPRs Industrial Property Rights Copyright and Related Rights

Industrial Property Rights

Patents n Industrial designs n Trademarks and Service marks n Geographical indications n Layout of integrated circuits n Plant breeder rights n Trade secrets

Copyrighted works
Literary works n Artistic works n Computer programs Database

Knowledge-based economy
IPRs have become controversial in international

discussions and debates on such diverse topics as trade, investment, technology transfer, industrial policy, public health, food security, education, human rights widening gap between the income levels of the developed countries and the developing countries. Economy is becoming increasingly knowledgeintensive. Our future prosperity more than ever depends on the innovative capacity of business and industry.

IPR Policy
A Framework for decision making process on IPRS. A Guideline and Strategic Plan for Decision Making Process. A Legal Framework for Decision Making Process That Protects IPRS.

The problem statements

Poor socio-economic and health status. Loss of indigenous knowledge. High dependence on foreign technology Unbalanced international trades. Lack of indigenous technology and poor knowledge protection environment. Weak intellectual based economy. Poor contribution of inventions to economy.

Justification of Intellectual Property Rights Policy

Creation of an environment that encourages and expedites the dissemination of discoveries, creations and new knowledge generated by researchers and citizens for the greatest public benefit. Protection of the traditional rights of Nationals researchers and Citizen to control the products of their scholarly work.

Justification Cont.
Ensuring that the commercial results, financial or other benefits are distributed in a fair and equitable manner that recognizes the contributions of inventors, the institution and other stakeholders. Ensuring that both IP and other products of research are made available to the public through an efficient and timely process of technology transfer.

Objectives of the national IPR Policy.

To promote, preserve, aid innovation and creativity among the citizens in Kenya, and to create incentives to attract and retain qualified staff by rewarding them to innovate, invent and create IPRs. To establish standards for determining the rights and obligations of inventor(s) and other stakeholders. To ensure compliance with applicable national laws and regulations by sensitizing staff on IP and tap creativity among the inventors and stakeholders.

Purpose of IPR Policy

Ownership of Intellectual Property. Research Funding and Intellectual Property. Revenue or Benefit Sharing. Government Rights. IP Asset Management. Capacity Building for Research commercialization and Technology Transfer.

Purpose Cont.
Routes for Commercialization and Technology Transfer. Managing Conflict of Interest and Commitment. Managing Invention Process. Implementation Strategies.

INSTITUTIONS OF IP IN KENYA
KIPI ATTORNEY GENERALS OFFICE KEPHIS UNIVERSITY OF NAIROBI MOI UNIVERSITY JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY.

Technology Acquisition
There are 4-broad means of acquiring technology, i.e.; Indigenous R&D Direct foreign investment Purchasing or leasing off-the-shelf, and Overseas training and study tours Accessing patent documents in the public domain

Mandates of Universities, R&D Institutions and Jua Kali Artisans

Universities= Capacity building, Teaching, Research and Knowledge Development R&D Institutions=Knowledge and Technology Development. ALL=Knowledge Transfer and Development NEED=Knowledge and Technology Protection. HENCE =IPR POLICY. Only five out 14 institutions.

OPERATIONAL ENVIRONMENT
The GOK adopted an Industrialization strategy for achieving: sustainable economic growth, rapid employment generation and poverty eradication, thro competitive production and consumption It is however, well recognized that for the last 10 years or so, the Industrial sub-sector in Kenya has been on the decline, and that,

Contin.
the country is faced with; Low capacity of generation and utilization of indigenous knowledge and technology Declining productivity, and Limited technological advancement

All of which are indicators of inadequate application of R&D Products and Use of Existing IPR Framework.

Research Products and IPRs-1

The direct product of research is knowledge. It can be in the form of New Technology New Product New Process Improvement in existing product, process or technology

Research Products and IPR-2

Publication a traditional R&D output The dissemination of knowledge through publications is not enough. R&D is only useful if its products can lead to
Economic development Industrialization Job creation Poverty Reduction

It is only through transfer of knowledge that a R&D Institution can become relevant to the society through effective IPR POLICY

Research Products and IPR-3

Knowledge generated may be made available free of charge Effective transfer of knowledge can only be realized through
Legal protection and Commercialization

Knowledge can only be commercialized if it becomes a property

It must have a Legal Owner It must have a value There must be a market for it

Research Products and IPR-4

There are two types of Assets

Tangible Assets Raw material, land, building, machinery Intangible Assets knowledge Old Economy Tangible property New Economy Intangible Property-IK

Research Products belong to a class of intangible property called intellectual property assets

These Assets Require Policy and Legal Framework for Protection and Commercialization.

. Intellectual Property and Indigenous Innovation

Main International IP Treaties Accessed

WIPO Convention October 1971 Paris Convention (indust.pro. Since 1965 Madrid Agreement (Marks) Since 1998 Berne Convention(literary ,Art) Since 1993

Main International IP Treaties Accessed .

PLT(Patent law treaty) PCT (Pat.Coop.Treaty)
8. Geneva Convention 9. WTO (trips) 10 ARIPO,UCC,UPOV,OAPI Since 2000 Since 1994 Since 1976 Since 1995

. Methods of Commercialization
There are Four Methods through which an Intellectual Property Assets can be commercialized
Licensing Sale Own exploitation start up companies Joint ventures

THEREFORE DO NOT EXPOSE THE ASSETS PREMATURELY. MAKE EFFECTIVE INSTITUTIONAL FRAMEWORK.

. Evaluation of the Impact of R&D

The contribution of R&D Institutions or individuals towards a countrys development can be measured through quantity of IP Assets generated IP Assets Licensed Income from Technology Licensing Companies created directly based on the product of R&D Jobs created Consultancy offered

IMPLEMENTATION OF APPROPRIATE IPR POLICY IS IMPORTANT. WE MUST DO SWOT ANALYSIS

2. Kenyan Patent Application Situation (1993-2003)

SMEs (Jua Kali) Industry 116 45

R&D Institutions
Individual from university Secondary School

14
2 1

University (MU)

The culture of innovation has not been developed Researchers in Universities and R & D Institutions innovate daily most of the innovation go unnoticed. Why ?

Poor utilization of the IPR Policy in Kenya.

INDUSTRIAL PROPERTY STATICS 1999,2001 AND 2005

Applications filed and /or Registered for 1999,2002 by ARIPO Applications by Applicants Residents Non-Residents Grants to Residents Non-Residents Applications PCT-2002 Grants not available Non-Residents and ResidentsTotal: 89,180 33 Patents 2001 2 59 Trade marks 1999 418 1,025 250 740 5 Registrations 1,483(Nonresidents only 9 Industrial Designs 2001

Registration Applications Madrid System- 1,484(Only 2005 non-residents

Policy issues on IPR And Economic Growth assumptions.

Countries are fixed as innovators or purchasers of innovations. Products are freely available without patent protection. Identical linear demand curves for all countries. Constant marginal costs. Monopoly prices imposed under patent protection

Empirical Analysis- the Relationship between IPR and FDI and Imports
Develop an IPR Score reflecting current legislation and practice. Analyse strength of IPR on FDI flows and Imports for Kenya.

Construction of IPR Score-Two Methods :A and B

A- Literature review of available IPR Scores National components= five scores eg. Extent of coverage, Membership to international agreements, Loss of protection, enforcement mechanisms and duration of protection.

Example of ranking for Latin America. Fairly arbitrary

Enforceability (25pts) Administration (10 pts) Copyright (12pts) Patents ( 17pts) Trademarks (9pts) Trade secrets (15pts) Life forms (6pts), Treaties (6pts) General public commitments (3pts).

Practitioners Components
Protectable subject matter and compliance with WTO or/and UPOV (1 or 0) Convention membership with PCT or/and UPOV (1 or 0) Cost of protection-May be included if posted on Websites. Administration-competence of staff in Website or not(1 or 0) Enforcement Corruptions perception Index (0 for high and 10 for low corruption)

Systematic three factor analysis For 12 point scale

Factor 1: (33%) Scope, weighing UPOV and TRIPS Factor 2:(24%)- Efficiency, weighing on PCTapplication component. Factor 3: (18.5%) Transparency, weighing on the CPI.

Intellectual Property Score 1998

COUNTRY Botswana Namibia South Africa Tunisia Zimbabwe Malawi Morocco Zambia IP SCORE 5.7584 5.0032 7.3548 4.7200 4.8208 4.7264 4.3488 3.3040 COUNTRY Senegal Cote dIvoire Egypt Kenya Nigeria Tanzania Brazil IP SCORE 3.9712 3.7824 2.7376 4.8060 1.7936 1.736 6.6960

Ghana

3.9712

Key Constraints in promoting industrialization through R&D

Low utilization of IPR Low level of commercialization of STI findings Low level of utilization of Reverse Engineering Inadequate Technology Transfer policy Lack of entrepreneurial culture Weak linkages between STI organizations and SMEs Low Funding of STI Weak marketing practices in STI and SMEs Inadequate utilization of local knowledge Weak linkages and networks amongst STI institutions Inadequate utilization of cleaner production techniques

Low Funding of STI

Objectives and Strategies
1. To increase funding of R&D from 0.3 % to at least 2-3 % of the GDP Lobby government through sensitization

2. To formulate national industrial research programs Undertake industrial research needs assessment in the identified key strategic areas Develop mechanism for funding

3. To Establish a National Industrial Research Fund Lobby government and development partners through sensitization NOTE: The GoK must fund strategic research

Low Utilization of IPR

Objective 1. Promote the generation, protection and utilization of intellectual property assets in STI organizations , SMEs, MEs and LEs

Strategies
Create an IP literate STI personnel Create focal IP points in STI Institutions and SMEs Develop IP policies in STI organizations and SMEs Provide policy incentives for the generation, protection and commercialization of IP Assets

Low Commercialization of R&D and innovations

Objective 4. Promote commercialization of innovations and R&D outputs Strategies Create technology transfer offices in STI organization Develop technology incubators Develop technology parks Create venture capital Create industrial innovation fund Establish Units for prototype development in STI organization Promote use of business development services

Low Utilization of Reverse Engineering

Objective 5. Promote technology development through reverse engineering Strategies Strengthen industrial and technology information center Promote use of patent documentation for R&D and innovation Promote patent mining Promote industrial exchange

Inadequate technology transfer policy

Objectives 6. Review and develop technology transfer policy 7. Formulate appropriate laws and regulations to back the policy

Strategies
Review existing policies on technology transfer Develop appropriate Sessional papers Review and update laws and regulations relating to technology transfer

Lack of entrepreneurial and technology culture

Objective 8. Promote entrepreneurial culture in STI activities 9. Promote technology culture among Kenyans Strategies Strengthen formal entrepreneurial education Nurture entrepreneurship among the youth Demystify STI Create awareness on the importance of STI to development Reward creativity and innovation

Weak linkages between STI Organizations and Industries

Objective 10. Strengthen linkages between STI organizations and industries Strategies Embracing entrepreneurial culture in STI organizations Generate technology oriented SMEs from R&D outputs Promote business linkages with industries (consultancies and contract research) Promote the uptake of R&D outputs by industries Provide policy incentives for industries to finance R&D Finance joint R&D activities between industries and STI institutions

Inadequate utilization of Traditional knowledge and local resources

Objective 11. Promote the use of TK and local resources Strategies Develop policies that promote the increase local contents in technology Utilize TK in technology development and utilization Develop technologies for value addition to local resources Promote a culture that encourages consumption of locally manufactured products

Weak linkages amongst STI Organizations

Objective 12. Promote networking and collaboration amongst STI organizations

Strategies
Undertake capacity audits in industrial research amongst STI organizations Promote joint and multidisciplinary research Promote sharing of research equipment

Weak marketing practices in STI Organizations and Industries

Objective 13. Strengthen marketing practices in STI organizations and industries

Strategies
Embracing marketing culture in STI organizations Embrace strategic marketing practices in industries (SMEs)

Conclusions
Rationalize and prioritize R&D activities in line with high potential sectors/clusters of the SMEs, MSEs and LSEs that will serve as seedbed for industrialization Establish Technology Service Centers to serve as hub for: Technology identification, sourcing, negotiation and technology acquisition Establish Technology and Business Incubation Centers

There must be a deliberate effort to embrace STI as a tool for industrial and economic development

Conclusions contd
Lead Technology missions and study tours Establish functional partnerships with relevant Government Ministries and other Departments, NESC, etc Establish functional partnerships with local, regional and international Organizations & RTIs Lobby GoK to support initiatives to develop the NIRP and establish a NIRF along the lines of ARF Kenya must attract, train and retain high caliber scientists and engineers to drive the process of industrialization Kenya must embrace entrepreneurial and technology culture in order to industrialize Restech Centre Must lobby and Advocate for the IPR Policy Change.

OPEN DISCUSSIONS