Legislative Implementation of Flexibilities - Kenya

Title:	Industrial Property Act No. 3 of 27/07/2001
Field of IP:	Patents
Type of flexibility:	Patentability or exclusion from patentability, of software-related inventions
Summary table:

Provisions of Law

No explicit provision of Law

Guideline for the examination of Patents, Utility Models, and Industrial Designs

6.7 Computer programs

In the particular case of inventions in the computer field, program listings in programming languages cannot be relied on as the sole disclosure of the invention. The description, as in other technical fields, should be written substantially in normal language, possibly accompanied by flow diagrams or other aids to understanding, so that the invention may be understood by those skilled in the art who are deemed not to be programming specialists.

Short excerpts from programs written in commonly used programming languages can be accepted if they serve to illustrate an embodiment of the invention.

Matters excluded from patentability

Section 21(3) sets out a list of exclusions from patentability, namely:

2l(3)(a) -a discovery, scientific theory or mathematical method;

Note. The fact that a known material has an unknown property is a discovery and as such is not itself patentable, but an application or use of that material may be patentable eg in a particular process. Similarly, finding a new substance or micro-organism occurring in nature is a discovery, but the process of isolating and extracting it, and the material so obtained, could be patentable.

21(3)(b) - a scheme, rule or method for performing a mental act, playing a game or doing business;

What is the position in regard to patents on computer programs?

Note:

(i) although rules for games cannot be patented (again they are covered by copyright), apparatus for playing a particular game (eg comprising board, pieces and rules) may be patentable

(ii) "methods of doing business" is an exclusion of importance. Methods of book keeping, trading stocks and shares etc are generally not patentable

26(b)

- Inventions contrary to public order, morality, public health and safety, principles of humanity and environmental conservation.

Probably the most important exclusions, as indicated above, are business methods and methods of medically treating humans and animals. It is particularly important to note that such methods may be patentable in some other countries, including the United States, so IPERs drawn up by USPTO and US equivalent patents should be checked carefully to ensure that they do not cover claims to business methods or to diagnostic, therapeutic or surgical methods for the treatment of humans or animals.

Equally it important to note that sections 21(3) and 26 does not exclude computer programmes.