#ipkenya Weekly Dozen: 29/06

First Volkswagen Assembled in Rwanda June 2018 DgsNALgXcAAGlJ_

  • The Continental Free Trade Area: A game changer for Africa [The East African]
  • Crunch Time at WIPO-IGC: A Last Attempt to Draft a New Genetic Resources Text? [ABS Canada]
  • Zimbabwe Launches National IP Policy & Implementation Strategy [AllThingsIP]
  • Ethiopia: Whose injera is it anyway? [Mail & Guardian]
  • Strengthening African Science [Project Syndicate]
  • South Africa: Marked improvements on the IP landscape [Lexology]
  • Google is throwing its weight behind artificial intelligence for Africa [Quartz]
  • Enabling intellectual property and innovation systems for South Africa’s development and competitiveness [Sibanda’s 2018 PhD Thesis]
  • Nigeria: Food Security In Africa: Is Genetically Modified Technology A Pathway? [Leadership]
  • Number of patents is a poor measure of innovation in ARIPO and Kenya [AfroIP]
  • Emojis and intellectual property law [WIPO Magazine]
  • Ten Years Later: Dismal Performance Scorecard for Kenya’s Anti-Counterfeit Agency [Captain Obvious]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other intellectual property-related items that you may come across.

Have a great week-end!

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2018 Proposed Amendments to The Industrial Property Act

2018 Amendments to Industrial Property Act Kenya KIPI

The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to the existing intellectual property (IP) law-related statutes. The Bill contains proposed amendments to the following pieces of legislation: The Industrial Property Act, 2001 (No. 3 of 2001), The Copyright Act, 2001 (No. 12 of 2001), The Anti-Counterfeit Act, 2008 (No. 13 of 2008) and The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016). The Memorandum of Objects and Reasons for the Bill is signed by Hon. Aden Duale, Leader of Majority in the National Assembly and it is dated 29 March 2018. This blogpost will focus on the proposed changes to The Industrial Property Act (IPA).

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UPOV 1991 Enters into Force in Kenya: Farmers’ vs Plant Breeders’ Rights

Stephen Ndungu Karau Ambassador and Permanent Representative accession 1991 UPOV Convention Kenya Francis Gurry Director-General World Intellectual Property United Nations Geneva Switzerland 2016

H.E. Amb. Dr. Stephen Ndungu Karau, Ambassador and Permanent Representative deposits the instruments of accession to the 1991 Act of the UPOV Convention on behalf of the Republic of Kenya received by Dr. Francis Gurry Director-General World Intellectual Property Organization – April 11 2016 Geneva, Switzerland.

On May 11th 2016, the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of December 2, 1961, as revised on March 19, 1991 entered into force in Kenya. As readers know, Kenya was the first country in Africa to join Union internationale pour la protection des obtentions végétales (UPOV) when it became a member on May 13th 1999 and subsequently domesticated the 1961 Act of the UPOV Convention in the Kenya Seed and Plant Varieties Act Cap 326.

Previously this blogger highlighted the recently adopted ARIPO Arusha Protocol and the draft SADC Protocol which are both modelled around UPOV 1991 standards. In this connection, the entering into force of UPOV 1991 in Kenya is a significant development for both plant breeders’ rights as well as farmers’ rights.

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Copyright and Law of Succession: High Court Suspends Payments of Les Wanyika Royalties

 

This blogger has come across the recently reported case of Sijali Salum Zuwa & 4 others v Pamela Akinyi Atieno [2016] eKLR involving a dispute over authorship and ownership of several musical works attributed to the legendary band, Les Wanyika. From 1978 to date, several founding band members have died namely Omar ‘Professor’ Shaban, Issa Juma, Mohamed Tika, John Ngereza and Foni Mkwanyule.The surviving members of the band filed suit in the High Court challenging a grant of letters of administration obtained by Pamela Akinyi, the widow of Shabani over her late husband’s estate including some forty eight (48) songs by Les Wanyika. One such song is “Pamela” (captured in the video at the start of this post) written by Shabani and dedicated to Pamela, who is the defendant in the present suit.
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ARIPO Adopts Arusha Protocol for the Protection of New Varieties of Plants

Ghana signs Arusha Protocol for the Protection of New Varieties of Plants 2015 ARIPO

The ARIPO Protocol for the Protection of New Varieties of Plants has been adopted by the Diplomatic Conference that was held in Arusha, the United Republic of Tanzania on July 6-7, 2015. Hence the name of the adopted Protocol is: Arusha Protocol for the Protection of New Varieties of Plants. A copy of the Arusha Protocol is available here.

According to ARIPO, the Arusha Protocol seeks to provide Member States with a regional plant variety protection system that recognizes the need to provide growers and farmers with improved varieties of plants in order to ensure sustainable Agricultural production. Eighteen Member States of the Organization were represented at the Diplomatic Conference namely; Botswana, The Gambia, Ghana, Kenya, Liberia, Lesotho, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda Zambia and Zimbabwe.

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ARIPO States Not Yet Ready for WIPO Budapest Treaty on Patents Involving Micro-organisms

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Recently, World Intellectual Property Organization (WIPO) in collaboration with the African Regional Intellectual Property Organization (ARIPO) held a seminar dubbed “Sub–regional seminar on the promotion and understanding of multilateral treaties in the field of patents: Paris Convention, Budapest Treaty and Patent Law Treaty (PLT)” hosted at the ARIPO Headquarters in Harare, Zimbabwe.

The focus of this blogpost is on the some of the issues arising around the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.

As many may know, the Budapest Treaty was concluded in 1977 and has been open to States party to the Paris Convention for the Protection of Industrial Property (1883). As at March 15, 2014, 79 States were party to the Treaty. Interestingly, there are only three African countries that have signed the Treaty, namely Tunisia, Morocco and South Africa – none of whom are ARIPO member states.

As many may know, the Treaty was intended to aid in disclosure requirement under patent law where the invention involves a microorganism or the use of a microorganism. Such inventions relate primarily to the food and pharmaceutical fields. Since such disclosure is not possible in writing, it can only be effected by the deposit, with a specialized institution, of a sample of the microorganism.
It is in order to eliminate the need to deposit in each country in which protection is sought, that the Treaty provides that the deposit of a microorganism with any “international depositary authority” suffices for the purposes of patent procedure before the national patent offices of all of the contracting States and before any regional patent office (if such a regional office declares that it recognizes the effects of the Treaty). The European Patent Office (EPO), the Eurasian Patent Organization (EAPO) and the African Regional Intellectual Property Organization (ARIPO) have made such declarations.

According to ARIPO’s press statement here, Director General Fernando dos Santos in his opening remarks “lamented the insignificant role that Africa is playing in global IP systems despite the fact that nearly every African state has enabling laws to facilitate its better placement in the global IP transactions and indicators.”
Dos Santos reportedly challenged member states to find their way into IP filings noting that according to the World Intellectual Property Indicators 2014, of the over 2 million patent lodgments made in 2013, Africa’s share was a mere 0.6% ─ with most of these 0.6% filings made in Africa emanating from the industrialized countries through the Patent Cooperation Treaty.

With that background in mind, this blogger suspects that most ARIPO member states
may not be ready to implement a Treaty such as the Budapest Treaty at present. Taking the Kenyan scenario for instance, local patent applications are very few and whilst Kenya may have no problem with the Treaty per se, it would be a cumbersome, expensive venture. For the foreseeable future, the real beneficiaries of the system under Budapest Treaty would be the developed countries since they remain ardent users of the patent system. Judging from the 3 countries that are signatories to the treaty, it is clear that capacity is a big impediment.

To highlight this issue of capacity, let us consider the “international depositary authority” provision under the Treaty. What the Treaty calls an “international depositary authority” is a scientific institution – typically a “culture collection” – which is capable of storing microorganisms. Such an institution acquires the status of “international depositary authority” through the furnishing by the contracting State in the territory of which it is located of assurances to the Director General of WIPO to the effect that the said institution complies and will continue to comply with certain requirements of the Treaty.

In this connection, it is important to note that there is no institution in Africa that has been recognised under the Treaty as a  “international depositary authority” whereas they are currently 42 such authorities in other countries worldwide including: seven in the United Kingdom, three in the Russian Federation, in the Republic of Korea, and in the United States of America, two each in Australia, China, India, Italy, Japan, Poland, and in Spain, and one each in Belgium, Bulgaria, Canada, Chile, the Czech Republic, Finland, France, Germany, Hungary, Latvia, the Netherlands and Slovakia.

Initially Kenya proposed to sign the Treaty and had identified two depositaries i.e Kenya Medical Research Institute (KEMRI) and Kenya Agricultural Research Institute (KARI) however the main challenge seemed to be a lack of capacity in proper handling of the samples and the means to maintain the cultures or strains to the required standards.
Not to mention the increased costs and logistics involved in the coordination between the IP office and the depositaries.

Therefore this blogger reckons that Kenya and other ARIPO member states need to focus more on growing Small and Medium Size Enterprises (SMEs) in terms of utility model applications and other connected areas of industrial property protection. Thereafter, as the innovation space grows, one expects that there would be greater demand and push from local inventors in Kenya and other ARIPO member states to join the Budapest Treaty so to enjoy it’s benefits.

A Kenyan Perspective of South Africa’s Draft National Policy on Intellectual Property

South_africa_parliament1

As many IP enthusiasts may have heard, South Africa has recently published a Draft National Policy on Intellectual Property (IP) (hereafter the Policy). Within the Kenyan context, this blogger has previously questioned the need for a national IP policy particularly in light of the recognition given to IP in the Constitution. However, for the purposes of this post, the policy provides a good basis for a comparative analysis of the state of IP in both South Africa and Kenya as well as possible recommendations to strengthen IP laws.

In the area of patents, Kenya’s IP office undertakes both formal and substantive examinations of patent applications whereas in South Africa, the Policy recommends the establishment of a substantive of a substantive search and examination of patents to address issue of “weak” vs “strong” patents. The policy’s recommendation to amend South African patent law to include pre-and post-opposition would also be instructive to Kenya.

Read the rest of this article here.