COMPULSORY ACQUISITION OF AN INTELLECTUAL PROPERTY

Intellectual property rights that is patents, trademarks, copyrights, utility models and others, give to the owners an almost monopolistic right over their creations. Generally, no other entity can use those works without permission of the owners. Businesses that secure intellectual property rights, usually attain a competitive or in some cases, monopolistic advantages over their competitors. Under the 2010 Constitution, for the first time, intellectual property rights have been specifically referred to and further, state agencies have an obligation to uphold those rights. Article 40 of the Constitution secures the right to own property and this includes intellectual property rights. It therefore goes without saying that no other entity can derive owners of the benefit of the intellectual property rights.

Patent owners’ rights include the right to make, import, offer for sale, selling and using the products. They also have the sole right of stocking such product and preventing unauthorized use or sale of their products. The rights are however limited and do not include the use of the product for scientific research, use of the articles in Kenya with the permission of the owner and are also limited by any provisions of compulsory acquisition of the product due to public interest and state exploitation of patented inventions.

 

 

However under general IP laws, the government can restrict the IP right by granting to another entity a compulsory license to produce or process the product without necessarily getting permission from the owner. This is especially in the case of life essential products like medicine. Compulsory licensing has its conditions for example the goods produced must be consumed for the domestic market only and not for export. A compulsory license is a forced transaction between a willing buyer and an unwilling

Seller imposed and enforced by the state. Reasons for granting a compulsory includes unreasonably high prices of essential commodities like medicines and also where public policy supersedes the individual rights. In some cases, to encourage competition in the market, the states have allowed compulsory licensing of IPRs to other third parties especially where the grant of the IPR would be uncompetitive and injurious to a market sector. While I am not aware of any antitrust action being filed compelling the respondent to issue compulsory licenses to third parties, there was a ruling in the Constitutional court on the matter of generic ARVs. The Claimants argued that their right to health was in endangered when generic ARVs were banned. The court found in their favor and upheld their constitutional right to health. In cases, like this where a businesses’ IPR is pitted against an individual’s fundamental rights and freedoms then most likely the court will uphold the fundamental rights.

 

While an a patent is generally a reward given to the innovator of scientific and technological inventions, at times the state can limit this right due to public interest. The provisions on compulsory acquisition are found in the Constitution, the Industrial Property Act and international IP treaties such as the TRIPS agreement, which Kenya is a signatory to. So far, I am not aware of any patent or other IP right going through the process of compulsory licensing possibly because there are not that many patents in Kenya.

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