Patenting the Un-Patentable: Lessons for African Patent Systems from a Review of Patent Subject Matter Exclusions in Kenya

Abstract

On 9th February 1994, Kenya Industrial Property Office (now known as Kenya Industrial Property Institute – KIPI) granted Kenya’s first patent under the post-independence patent system. This patent was for a protein derived from tick larvae suitable for the protection of grazing cattle from ticks. It appears that this patent was granted with claims to a method for treating animals, despite an express statutory exclusion from patentability of such inventions. The patent system is built on a trade-off whereby, in exchange for a limited monopoly over a fixed period, an inventor discloses the knowledge embodied in an invention to the State in trust for the public. Key to this assumption is that society has a system in place in which experts in the respective fields to which the inventions pertain have the capacity to evaluate the merits of the claimed inventions in terms of statutory requirements, including subject matter eligibility. By limiting subject matter eligibility within the patent statutes, societal burdens stemming from grants of patent rights are minimized in targeted areas. This trade-off implicitly assumes the availability of granted patents tabulated in a substantive database of eligible patent subject matter. Deviations from such expectations risk the patent system becoming a rip-off rather than a trade-off. Proceeding from this initial premise, this article examines the origins of the subject matter categories excluded from patent protection from the 1624 Statute of Monopolies to the present day. Using Kenya as a case study, this article offers a preliminary review of patent data showing the number of patents having claims directed to subject matter excluded from patent protection in the operative law. It is hoped that the research described in this article will be of use to other African countries wishing to strengthen the value and effectiveness of their respective patent systems in the public interest.