Mobile Developer Claims Copyright over Songa Music App by Safaricom, Radio Africa

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The recently reported High Court case of Evans Gikunda v. Patrick Quarcoo & Two Others [2018] was born out of a business deal gone bad. At the heart of this dispute is a music application (app) that the plaintiff (Gikunda) claims to have conceptualised, designed and developed between 2012 and 2016. However Gikunda joined the employ of the 2nd Defendant (Radio Africa Group Limited) in 2013 where the 1st Defendant (Quarcoo), the Chief Executive at Radio Africa, ‘persuaded Gikunda to partner with him to ensure that the product gets to market’.

According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app as follows: Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner. However, in mid-2016, Gikunda resigned from Radio Africa after which he alleges that Quarcoo and Radio Africa sold the app, without his knowledge, to the 3rd Defendant (Safaricom).

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High Court Judgment on Constitutionality of Equitable Remuneration Right and Copyright Collective Management

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Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).

Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.

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Reminder: CIPIT – KIPI Training Course on Patent Drafting and Prosecution, 18th – 21st August 2014

“The strength of a patent depends on a properly prepared patent specification that meets the requirements prescribed in the Industrial Property Act 2001 and the industrial Property Regulations 2002. In addition, there are generally accepted practices that have developed over the many years of patent practice, which serve to guide preparation and prosecution of patent applications.”

There will be a training course, Patent Drafting and Prosecution, to be held on 18th – 21st August 2014 at Strathmore University. For learned friends who attend and complete this course, they will receive 2 CLE points. The course prospectus is available here and the course programme is available here.

For those who attended this course in 2013 (see here), and wish to further refine your patent drafting skills, please note that the 2014 version of the course will focus heavily on patent drafting for ICT-based inventions. The trainers of this year’s training course will also work with repeat attendees to customize your training.

The fee per participant is Ksh 50,000 which is inclusive of course materials, lunches and teas. Participants who register and pay the fee early will enjoy a special rate of Ksh. 45,000.

For more information contact: cipit@strathmore.edu

Summary of the Industrial Property Act 2001

The main object of this Act is to provide for the promotion of inventive and innovative activities, to facilitate the acquisition of technology through the grant and regulation of patents, utility models, technovations and industrial designs. Section 3 of the Act establishes the Kenya Industrial Property Institute (KIPI).

KIPI is the main implementation and administration agency for industrial property in Kenya. It liaises with other national, regional and transnational intellectual property offices, patent offices and international organizations that are involved in industrial property protection. KIPI’s mandate includes: considering applications for and granting industrial property rights; screening technology transfer agreements and licences; providing to the public industrial property information for technological and economic development; and promoting inventiveness and innovativeness in Kenya.

The Act also establishes the Industrial Property Tribunal to deal with cases of infringement. Section 109 of the Act also criminalises infringement on others patents, registered utility models or industrial designs.

The application forms for patent, industrial design and utility model are available here.
The current fees payable to KIPI for patent, industrial design and utility model applications are available here.

 

Patents and Utility Models under the Industrial Property Act

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A patent is a legal document granted by a State that secures to the holder, for a limited period, the right to exclude others from making, using, selling, offering for sale, and importing the patented subject matter. Any new and useful process, product, composition of matter, or any improvement thereof, may be patented, if such invention meets these three requirements: (1) Novelty; (2) Inventive step i.e must not be obvious to a person of ordinary skills in that field of art, and (3) Industrial applicability.

The following are not patentable:

  • Discoveries or findings that are products or processes of nature, where mankind has not participated in their creations
  • Scientific theories and mathematical methods
  • Schemes, rules or methods of doing businesses or playing games or purely performing mental acts.
  • Methods of treatments of both human and animals by surgery or therapy as well as diagnostic methods practice thereto, except products for use thereof.
  • Inventions contrary to public order, morality, public health and safety, principles of humanity and environmental conservation

 

The steps to be followed for grant of a patent in Kenya are as follows:

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NB: Please note that the fees indicated in the diagram above may not be up-to-date, consult the link in the box above for the current fees.

Industrial Designs under the Industrial Property Act

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An industrial design refers to the ornamental or aesthetic features of a product.  In other words, it refers only to the appearance of a product and NOT the technical or functional aspects.

Any products of industry can be protected as an industrial design including: fashions, handicrafts, technical and medical instruments, watches, jewellery, household products, toys, furniture, electrical appliances, cars; architectural structures; textile designs; sports equipment; packaging; containers and “get–up” of products

The requirements for industrial design protection are: (1) Novelty;  (2) Originality i.e. independently created; and (3) Design must have “individual character” – when overall impression is evaluated against others.

The registration process for an industrial design in Kenya is as follows:

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NB: Please note that the fees indicated in the diagram above may not be up-to-date, consult the link in the box above for the current fees.