Challenges Facing Intellectual Property (IP) Audit, Valuation and Management in Kenya

IP audit, valuation and management is a key aspect of exploitation and protection of IP. However, very few enterprises conduct these crucial exercises. Prior to 2007, the Business and Law Institute reports that only about 2% of the large enterprises were conducting some sort of IP audit with 0% from the medium and small enterprises in Kenya. 0% of all enterprises were conducting a valuation of their IP. Only 0.5% of all enterprises had a deliberate IP management policy. This paints a grim picture.

The following main challenges can be cited.

There is a lack of relevant data in businesses in Kenya. Consequently, conducting an IP audit is time-consuming due to the fact that few companies have a specialised office dealing with the company’s IP. It is even more difficult to conduct a valuation because of lack of specific data on invention costs, advertising costs per IP and other information.

There is also too much secrecy about IP in Kenya. Accordingly, comparable data is lacking where needed.

Further, there is a lack of IP valuation and management organisations in Kenya.

There is also an inadequate enforcement of IP laws. The Anti-Counterfeit Agency is yet to establish its presence countrywide.

In Kenya, the IP asset is not recognised as collateral for purposes of obtaining finances. This is due to various reasons. The financial institutions have not yet recognised it as an asset that can be realised. The owners of IP have also not recognised it as an asset that can be offered to the financial institutions as collateral. More importantly, the law is deficient in that it does not provide for the creation of charges on IPs or registration of an interest in the register other than an assignment or license.

The lack of a deliberate intellectual property strategy and policy in Kenya is also inhibitive, although the 2010 Constitution is very IP-friendly.

Conclusion:

It is clear that the importance of IP audit, valuation and management cannot be emphasised enough. Unfortunately, the full impact of these processes have been been realised in Kenya. As a result, IP owners are worse off due to the fact that it is not possible to have an optimum utilisation of IPs without properly managing them.

There is therefore need for the promotion of the use of IP audit, valuation and management services with a view to promoting industrialisation and socio-economic development in Kenya and indeed the achievement of the goals of Vision 2030. SMEs should be encouraged to consider these services as vital elements in their growth.

Financial and other lending institutions should also consider IP assets as stand-alone assets which can used as collateral for loans A favourable government policy would go a long way in making this possible. This would in the long run enable entrepreneurs to obtain finances to exploit their IPs.

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