In January 2013, the President assented to the Science, Technology and Innovation Act 2012. This is an Act of Parliament to facilitate the promotion, coordination and regulation of the progress of science, technology and innovation in the country. This legislation also aims to assign priority to the development of science, technology and innovation. Finally, this new law is intended to entrench technology and innovation into the national production system.
This new law repeals the Science and Technology Act, Cap 250 of the Laws of Kenya which was came into force on July 1977 with the establishment of the National Council for Science and Technology (NCST).
The process of arriving at this new law concretised in 2009 with the conclusion of the Science, Technology and Innovation (ST&I) Policy and Strategy spearheaded by the Ministry of Higher Education, Science and Technology. This ST&I Policy underscored the importance of mainstreaming science, technology and innovation in all sectors of the economy to ensure that Kenyans benefit from the acquisition and utilisation of available ST&I capacities and capablities to improve their quality of life. This (ST&I) Policy and Strategy provided the framework for creating a knowledge-based economy. It was this (ST&I) Policy and Strategy that was used to develop the draft ST&I Bill in 2009 which was subsequently amended in 2012 to align it with the new constitutional dispensation.
From an intellectual property (IP) perspective, it is important to note the definition of “innovation” introduced in the new law, which reads as follows:
(a) a technovation model, utility model or industrial design within the meaning of the Industrial Property Act, 2001;
(b) a product, process, service or idea which is novel;
(c) an improved use of a new product, service or method in industry, business or society, or
(d) any other non-patentable creations or improvements which may be deemed as deserving promotion and protection or sui-generis intellectual property rights and “innovator” shall be construed accordingly; (Emphasis mine)
The paragraph (d) provision above is important in that it covers inventions and innovations such as business methods (eg. M-Pesa) which may be excluded from protection under the Industrial Property Act.
In addition to the National Commission for Science Technology and Innovation, the new law also introduces two other organs, namely the National Innovation Agency and the National Research Fund.
Among the functions donated to the National Commission, the new law in section 6(2) states that:
The Commission shall have powers to-
(a) apply for the grant or revocation of patents;
(b) institute such action in respect of the patent as it may deem appropriate for the security of the country;
(c) acquire from any person the right in, or to, any scientific innovation, invention or patent of strategic importance to the country; (Emphasis mine)
The paragraph (d) provision above is interesting as it creates a system of compulsory acquisition in intellectual property and must therefore be read together with Articles 40 and 260 of the Constitution.
Under section 29(1) of the new law, the newly created Kenya National Innovation Agency is required to:
(d) scout for and nurture innovative ideas from individuals, training institutions, the private sector and similar institutions;
(g) increase awareness of intellectual property rights among innovators;
(o) develop the national capacity and infrastructure to protect and exploit intellectual property derived from research or financed by the Agency;
(p) facilitate the application for grant or revocation of patents and institution of legal action for infringement of any intellectual property rights;
The new law in section 32 establishes The National Research Fund. The Fund will be managed by a Board of Trustees. In section 32(2), it is stated that the Fund shall consist of-
(a) an initial sum of money amounting to two percent of the country’s gross domestic product, provided by the Treasury; (Emphasis mine)
This provision in the new law is noteworthy as it prescribes a fixed percentage of Kenya’s GDP that should be allocated to Research and Development.
Under section 34(1)(k), the Board of Trustees is required to “initiate liaison with bodies involved in the protection of intellectual property rights”.
Overall, it is clear that this new law aims to ensure that existing Intellectual Property Rights (IPR) regime are strengthened to maximize incentives for the generation, protection and utilization of intellectual property by all types of innovators and foster achievement of Kenya’s national development objectives.
Science, technology and innovation is indeed at the heart of Kenya’s vision to become a globally competitive and prosperous nation as contained in the National Vision 2030 national blue print.
Observers, policymakers and stakeholders alike recognise the urgent need for the government to create an enabling environment through the formulation of policies that promote the use of science and technology, integrating the science policy into our nation’s development agenda and ensuring that adequate funding for the implementation of ST&I policies is available.