“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.