Software Patents, Business Method Patents: State of Play in Kenya

“anything under the sun that is made by man [is patentable]”
– US Supreme Court in the case of Diamond v. Chakrabarty 447 US 303 (1980)

“From where does a man derive his right to possess something, and to refuse the whole world his right of ownership? This right originates from only one factor; the fact that man is nobody’s property. He owns himself and cannot be someone else’s possession. If, therefore, man possesses himself, it is clear that his wealth, his intellect, and his ability cannot be someone else’s property. So, whenever he uses his intellect, his health and his ability to make anything, that thing becomes his property”
– Mwalimu Julius Nyerere, “Freedom and Unity/Uhuru na Umoja” (1966) (cited at #CIPITConf by @IPKenya)

“Anything that won’t sell, I don’t want to invent. Its sale is proof of utility, and utility is success.” – Thomas A. Edison. (cited at #CIPITConf by @HKMLegal)

“When we work, natural law says we have the right to own our work. To let others steal this is to destroy the basis of civilization, to cast us into slavery. If I cut a tree and make a table, it is mine. If I write a story, it is mine. If I invent a new compression algorithm, it is mine. When someone takes my ideas, it is theft, and a just society must punish theft, or it falls apart. Software patents are thus a natural and necessary protection for original ideas.”
– Peter Hintjens. (cited at #CIPITConf by S. Kiptinness)

During CIPIT’s 2-day conference (#CIPITConf) on the patentability of software in Kenya, none of the speakers appeared to advocate for an outright position for or against software patents. Instead, all the presenters at #CIPITConf did their best to elaborate on the pros and cons of patents generally and software patents in particular.

With regards to the patentability of ICT inventions, the patent experts at #CIPITConf from the World Intellectual Property Organization (WIPO) and the Kenya Industrial Property Institute (KIPI) both seem to agree that one is most likely to be granted a patent for a hardware controlled by software and least likely to be granted a patent for a software embodied on a machine readable medium or through a network.

Therefore the decision Kenya needs to make is where to draw a line between unpatentable computer programs and patentable inventions that embody, apply or use the unpatentable computer program. In this regard it was noted by participants at #CIPITConf that there’s a lack of administrative and judicial interpretations on the exclusions from patentable subject matter provided for under section 21 of the Kenya Industrial Property Act. Thus, Kenya needs to develop it’s own clear tests for distinguishing non-patentable software and patentable software-implemented inventions. These tests will only develop from a large and consistent volume of software patent applications being filed at KIPI coupled with fervent litigiousness on the part of unsuccessful software patent applicants.

Read the rest of this article over at the CIPIT blog here.

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Tobacco Plain Packaging Law: Intellectual Property Rights versus Human Rights in Kenya

Australia’s Parliament is without doubt one of the most proactive legislatures in the world. In a few short years, it has made history as the first country to legislate on carbon taxes and now it is taking on the multi-billion dollar worldwide tobacco industry. In the above clip, circa 10:53, Richard di Natale, Senator from Victoria had this to say on the need to legislate further against ‘Big Tobacco’:

“The one frontier that has remained open to tobacco companies is on the packets themselves. They are little billboards of nastiness advertising their wares to passers-by from pockets, from kitchen tables, on dashboards of cars, all around the country. And smokers do see the branding on these packets potentially dozens of times a day. And this Bill will remove that opportunity. An opportunity for tobacco companies to compete on grounds of brand awareness and image.

The Tobacco Plain Packaging Act 2011, when it does come into law, will remove the ability of tobacco manufacturers to display logos, images and promotional text on their packs and will replace it all with a plain brown packet. Current health warnings will be enlarged and accentuated… Under the Act it will be an offence to sell a non compliant product with potential penalties in excess of one million dollars for a wilful breach of the act by a body corporate. Under the Act, the packet will be tightly controlled: they have to be made of cardboard, packs have to be rectangular, contain no embossing, the colour needs to be a drab dark brown and no trademarks will be allowed. The location and orientation of the branding variant name are strictly prescribed and the graphic warning will be enlarged to 70% of the front of the packet.

In short, this bill aims to ensure that the packet of cigarettes is as ugly as the product itself.” (Emphasis added)

Australia has now enacted this Bill into law.

Meanwhile here in Kenya, the Tobacco Control Act 2007 remains in force and section 21 of this Act contains the following provisions with regard to packaging of tobacco products:

“21 (2) Every package containing a tobacco product shall –

(a) have at least two warning labels of the same health messages, in both English and Kiswahili, comprising of not less than 30% of the total surface area of the front panel and 50% of the total surface area of the rear panel, and both located on the lower portion of the package directly underneath the cellophane or other clear wrapping;
(b) bear the word “WARNING” appearing in capital letters and all text shall be in conspicuous and legible 17-point type, unless the text of the label statement would occupy more than seventy percent of such area, in which case the text may be of a smaller but conspicuous type size, provided that at least sixty percent of such area is occupied by the required text; and
(c) bear text that is black on a white background or white on black background in a manner that contrasts by typography, layout or colour with all other printed material on the package.

(3) All the warning labels specified in the Schedule shall be randomly displayed in each twelve-month period on a rotational basis and in as equal a number of times as is possible, on every successive fifty packages of each brand of the product and shall be randomly distributed in all areas within the Republic of Kenya in which the product is marketed.
(4) The Minister may, by notice in the Gazette, prescribe that the warning, required under this section, be in the form of pictures or pictograms; (..)”

Returning back to Australia, in the recent case of JT International SA and BAT Australasia Limited v Commonwealth of Australia [2012] HCA 30, Big Tobacco went to court challenging the constitutionality of the Plain Packaging Act. The High Court of Australia earlier issued orders ruling that “at least a majority of the judges” are of the view the plain packaging regime is valid under the Australian Constitution. The High Court rejected the arguments of Big Tobacco that there was an acquisition of property on less than just terms. See case citation here.

Meanwhile back to Kenya, BAT East and Central Africa Area Director Gary Fagan is reported as being “extremely disappointed” by the court] decision on the Australian Act which he termed as a “bad piece of law”. He adds that:

“”We fully support any form of evidence-based regulation but there is no proof to suggest plain packaging of tobacco products will be effective in discouraging youth initiation or encouraging cessation by existing smokers (…) In fact, plain packaging would only exacerbate an already significant illicit tobacco trafficking problem, and would have other significant adverse unintended consequences including driving down prices which would lead to increased smoking while reducing government tax revenue(…)”

As a matter of fact, earlier this year, IPKenya recalls government authorities raising the alarm over increased sale of counterfeit and smuggled cigarettes in Kenya. Kenya Anti-Counterfeit Agency (ACA) reported that cigarettes are rapidly becoming the most illegally traded product in the region, while health experts warned a health crisis could be looming. Local cigarette makers BAT-Kenya and Mastermind Kenya Ltd estimated that counterfeiters pocket upwards of US$1.05 billion (Sh100 billion) every year from sales across East Africa.

Comment:

In deciding whether Kenya should or shouldn’t follow Australia’s bold legislative approach, IPKenya asks: Is destroying trade marks or brands of Kenyan cigarette companies in order to discourage the use of tobacco products reasonable and justifiable under the limitation clause in Article 24 of the Constitution?

Unlike in Australia, Kenya’s Constitution has over 3 specific provisions on intellectual property rights including the broad provision on the protection of right to property enshrined in Article 40. In this regard, the stand-out constitutional provision which would need some legislative and judicial interpretation is Article 40(5) which states: “The State shall support, promote and protect the intellectual property rights of the people of Kenya”. This provision alone could form the basis of a constitutional challenge by Kenyan tobacco companies if the government decided to propose a law similar to the Australia’s Tobacco Plain Packaging Act 2011. In addition, Big Tobacco in Kenya may chose to rely on other persuasive arguments mentioned above such as the potential increase of smuggled and/or counterfeit tobacco products and its effect on illegal and organised crime in the country.

If our government was desirous to push for such legislation, it would argue that intellectual property rights must be balanced with other fundamental rights and freedoms also enshrined in the Constitution. In a recent High Court case discussed by IPKenya here, the court considered the intellectual property rights of pharmaceutical manufacturers protected in the Anti-Counterfeit Act but held that the provisions of this Act denied Kenyans access to essential HIV medicines therefore it violates the right to life of Kenyans as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1). The rights under Articles 26(1), 28 and 43(1) of the Constitution in addition to Article 42 on the right to a clean and healthy environment can be relied upon by the State in support of a plain packaging law.

Within Africa, it is reported that South Africa’s government has already expressed its intention to follow Australia’s controversial new tobacco law.