88 per cent of the 742 patent certificates granted by the Kenya
Industrial Property Institute in 2016 went to international companies
and individuals. PHOTO | FOTOSEARCH
Summary
- Eighty-eight per cent of the 742 patent certificates granted by KIPI last year went to international companies
- Institutions and individuals have failed to protect their intellectual property, exposing ideas to theft by third parties
- Four patents are granted on average each year.
Dominic Wanjihia is a tinkerer whose inventions have taken him on many bumpy journeys, both physically and intellectually.
This year, he took the final step to join a club so exclusive that there are less than 100 Kenyan members.
One of his inventions, a flexible biogas digester, was finally granted a patent.
Kenya opened its patent office in 1994, a vanguard among its African peers.
However, between that first day of operation and the end of 2016 the office had granted 92 patents to Kenyan residents.
Eighty-eight
per cent of the 742 patent certificates granted by the Kenya Industrial
Property Institute (KIPI) went to international companies and
individuals.
Four patents are granted on average each year and some years,
like 2002, were so dry that only one patent was issued to a Kenyan
resident.
And there is no redemption to be found in growth figures.
One patent was granted in 2015, in comparison to the seven patents that were given a decade earlier.
Measure of innovation
Patents have long been used as a proxy measure for innovation in an economy.
So these figures are at odds with the narrative of Kenya as a hub for innovation and the government’s ambitions to make our brains, and our ideas, the foundation of the future “knowledge economy”.
So these figures are at odds with the narrative of Kenya as a hub for innovation and the government’s ambitions to make our brains, and our ideas, the foundation of the future “knowledge economy”.
So
what gives? Is the story of Kenya as innovation hub little more than a
myth trotted out by eager politicians, as these numbers would suggest?
Isaac
Rutenberg, who runs the Centre for Intellectual Property and
Information Technology (CIPIT) at Strathmore University, says the
answers to these questions are less clear cut, more complex.
“Are
people using the system? Not so much. But that doesn’t mean there isn’t
innovation. It just means that quite a lot of it doesn’t make it to the
patent office,” says Dr Rutenberg.
This is dangerous
because inventors are left more vulnerable to predation either locally,
or more worryingly, from deep-pocketed international players.
It also makes it difficult to partner with the well-intentioned
investors that may want to throw their weight behind a local invention.
So why are people not using the intellectual property system? The answers to this question are even murkier.
However,
one of the things that is patently clear is that the institutions that
should be flooding our patent office are either not investing in
innovations or not bothering to protect these innovations.
'Relatively inactive'
A recent
peer-reviewed paper co-authored by Dr Rutenberg analysed data from KIPI
and found that corporates and educational institutions are “relatively
inactive” in registering patents.
By mid-2016,
according to the research, Kenya’s higher education institutions only
had four patents and seven utility model certificates, a form of
intellectual property protection that is a step down from a patent.
Only one government research centre had an active patent while corporates accounted for 22 patents.
The
Jomo Kenyatta University of Agriculture and Technology (Jkuat) told the
Business Daily that it had four patents to its name in November 2017,
meaning that these numbers may have improved since mid-2016.
Patent applications are also on a positive trajectory suggesting
that the picture may be rosier in a few years when these are examined.
Nevertheless,
compared to other countries in the world the failure by research
institutions and the private sector to protect intellectual property is a
“very unusual” trend that Dr Rutenberg attributes partly to a lack of
incentives in universities for researchers to develop innovations.
Kenyan companies are yet to make the leap from simply selling, importing, and exporting to generating their own knowledge.
'Firms don't do R&D'
“So
few (patent applications) are from corporates. And the reason, as far
as I can tell, is that corporates don’t do R&D (research and
development). We’re not actually developing new products,” says Dr
Rutenberg.
The primary users of Kenya’s patent system
are individuals running small businesses, like Mr Wanjihia, or simply
dreaming up big ideas in their kitchens.
These individuals lack the kind of resources that a university or a big corporate might have.
In trying to protect their intellectual property they face a steep, sometimes insurmountable mountain.
Wanjihia’s first encounter with Kenya’s patent system was about 25 years ago.
The
opacity of the system had him opting to keep his sketches of a new type
of engine private rather than go through the hurdles of a patent
application process.
The second time he went for a
patent, this time for his biogas system, he had the advice of Dr
Rutenberg to guide him through the five-year process.
“I don’t think I would have bothered to go through the process alone,” he says.
Technical demands
Sylvance
Sange, managing director at the KIPI, says most applicants find it
difficult to meet the technical demands of drafting a successful
application.
An inventor will need to hire a professional patent drafter and the cost of this skills, on average, is at least Sh50,000.
“And I am only saying that because I don’t want to go too high, to scare people off,” says Mr Sange.
Patent
drafting itself is a very rare skill in Kenya. When asked how many
drafters, other than himself, he would recommend to inventors Dr
Rutenberg says “off the top of [his] head” he can think of “only three”.
A government official told the Business Daily there
were probably ten qualified patent drafters in the country, if one did
not count the people working for KIPI.
The lack of
quality drafting shows — there is a high level of attrition when between
applications and granted patents, even taking into consideration the
years it takes to examine any one application.
In addition to examining local applications, the KIPI also handles foreign ones thanks to a series of international agreements.
The success rate for these ones is much higher. So while only
one patent was granted to a resident in 2015, the KIPI actually granted a
total 24 patents.
These figures exclude the 358 that
came through the Africa Regional Intellectual Property Organisation, an
intergovernmental that examines patent applications at the regional
level.
“If the application comes from the Western
world, these people matured in IP long ago. There you will find things
like preparing applications is not much of a problem,” says Mr Sange.
Bridge gap
There
are efforts to bridge this skills gap. The CIPIT trains people on
patent drafting but Dr Rutenberg admits that many people drop out before
completing the rigorous course work.
Mr
Sange says the KIPI plans to take on a stronger role in education and
even Wanjihia, frustrated by what he has gone through, has the seed of
an idea to set up an incubation centre where inventors would be guided
through these processes.
One of the ways that the
government has tried to make it easier for inventors to protect
intellectual property is by relaxing the rules for granting a Utility
Model Certificate (UMC), a form of intellectual property protection for
inventions that are new and useful but not necessarily inventive.
This form of protection remains in place for 10 years in comparison to the 20 years granted under a patent.
Instead
of rigorously examining these applications, since 2014 the KIPI has
only been checking to ensure that formalities are adhered to.
With the new regulations utility model registrations shot up, from four in 2013 to 31 in 2014.
Failing to substantively examine utility model applications means that errors will creep through, experts say.
“It
means that when you to the market, you may even find someone else who
has a product like yours out there already,” says Mr Benson Kariuki, who
heads the directorate of intellectual property management at the Jkuat.
Yet the person with the certificate would have the power to go to court and demand legal redress.
Painful process
Research shows that after going through this painful process, many Kenyans end up abandoning their patents.
After
a few years, most people do not bother to pay the fees associated with
the patent certificate, meaning that they lose the rights.
Seventy-nine per cent of all local patents ever granted had been abandoned by mid-2016.
Considering
the annual fees associated with a patent are not so high (Sh2,000 per
year for the first seven years), research points to an even more
depressing reason for the abandoned patents.
“Instead,
we surmise that many of these applicants intended to use the patent to
seek funding and/or licencees, but were unsuccessful even with a granted
patent and decided not to continue paying,” says the paper co-authored
by Dr Rutenberg and Jacquelene Mwangi.
For these inventors, there is little victory to show for the uphill battle fought just to protect their intellectual property.
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