Technology plays a very important role in Kenya’s economic development and most of the companies that have high returns are in the telecoms or ICT sector. This trend is the same globally…a quick scan through the Forbes list of the world’s richest shows that most of them are in the ICT sector. This sector has given rise to a new crop of CEOs and billionaires…the young billionaires who are not yet in their thirties. This trend is also catching up in Kenya where profitability has ceased to be about capital but has become more tied to knowledge and innovation. As an intellectual property practitioner, most of the inquiries I get are from young innovators in the ICT sector and a few in the telecoms industry especially the app developers. The most common inquiry from them is how to protect their works. It is quite challenging to protect ICT in Kenya through patents and this forms the subject of this article.
The current laws governing ICT are the Kenya Communications Act, Science and Technology Act and to some extent the Industrial Property Act. The Kenya Communications Act does not address issues of protection of ICT innovations but mostly addresses issues of licensing and regulation. This therefore leaves the Industrial Property Act and the Science and Technology Acts as the statues that would govern the rights of an ICT innovator. What ICT innovators should know is that the 2001 law on Industrial Property does not exclude software from patenting however what is patentable is the method, any device that will support the software and the process. Software that falls under the category of business method do not qualify for patent protection. What this therefore means for the ICT innovator is that only some software can be patented in Kenya. If the software’s applicability is in improving the way business is done for example an MIS system, it cannot be patented. Other than this criteria for protection, the innovator must ensure that his work meets the other requirements like novelty. The ICT innovations that are most likely to be granted a patent are hardware ICT inventions. Such hardware innovations controlled by software are patentable in Kenya. What this means is that ICT innovators should consider doing more of hardware innovations as opposed to software which are harder to protect under patent laws.
This is not to say that software cannot be protected under Kenyan laws at all. There are still other types of intellectual property like utility models and copyrights that can be granted to ICT innovators. However these may not be as effective as patents in protecting the innovation. There are some countries that grant software patents and therefore an innovator can pursue protection of their software in such a jurisdiction. This would only make sense if such innovation is going to be commercially exploited in the foreign country otherwise it would be an expensive venture.
My advice for ICT innovators would therefore be to consider doing more of hardware innovations so as to meet eligibility under Kenyan patent laws. They could also consider protecting their software innovation in other countries like the USA if their end product will be commercially exploited in such countries. Today there are some venture capitalists who scout for innovations to finance and commercially exploit in another jurisdiction. An innovator such as this one can get foreign protection for his software innovation. If all else fails, then ICT innovators can consider filing for utility model and copyrights. This will give their innovations a measure of protection.
There have been calls for the law to be amended to suit the needs of ICT innovators. There is currently not enough case law in Kenya on software innovations.