Readers of this blog are familiar with Sanitam Services (EA) Limited, the holder of ARIPO Patent No. AP 773 entitled “Foot Operated Sanitary/Litter Bin”. Over the years, Sanitam has been involved in numerous suits pertaining this patent as previously discussed here. This blogger has recently come across a judgment in the case of Hygiene Bins Limited v Sanitam Services (E.A) Ltd  eKLR.
In this case, Hygiene Bins was in the Court of Appeal seeking to overturn the ruling of the High Court allowing Sanitam’s application for an injunction restraining Hygiene Bins from selling, providing services, using its foot operated sanitary bin, offering for sale, selling, passing off the same as theirs, trading in Kenya howsoever and in any manner likely to cause Sanitam’s business to be confused with that of Hygiene Bins and/or from trading in any manner as to infringe Sanitam’s granted patent pending the hearing and determination of the suit.
According to Hygiene Bins, it had never used or passed off Sanitam’s bins as its own or deceived or misled the general public that its bins were Sanitam bins. Hygiene contended that it was engaged in the business of providing sanitary services which excluded the manufacture of sanitary bins and that the sanitary bins it supplied its customers were imported and lawfully supplied by foreign manufacturers and had done so even before 1999 when Sanitam acquired its patent. Therefore Hygiene argued that the High Court ought not have granted the prohibitive interlocutory injunction sought by Sanitam for three main reasons namely: that Sanitam did not demonstrate a prima facie case with a probability of success at the trial; that it also did not demonstrate that unless the injunction was granted it would suffer irreparable damage and that balance of convenience tilted in favour of declining the injunction.
The Court of Appeal found against Hygiene and declined to interfere with the High Court ruling. Unfortunately neither the High Court nor the Court of Appeal delves into any specific detail about the exact test to be applied in determining patent infringement. Instead both courts insist that for purposes of interim injunction, the required evidentiary threshold had been met by Sanitam.
A copy of the judgment by the Court of Appeal is available here.