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Legislative Implementation of Flexibilities - Kenya

Title:Articles 27 and 28 of the Industrial Property Act of 27/07/2001
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Information prejudicial to defence of Kenya or safety of public

27. (1) Where an application for a patent is filed with the Institute under this prejudicial to

Act or under any international convention to which Kenya is a party, and it appears to the Managing Director that the application contains information or a description notified to him by the Minister responsible for defence or the concerned Minister as being information the publication of which might be prejudicial to the defence of Kenya, the Managing Director may give directions prohibiting or restricting the publication of that information or its communication to any specified person or persons.

(2) If it appears to the Managing Director that any application so filed contains information the publication of which might be prejudicial to the safety of the public, he may give directions prohibiting or restricting the publication of that information or its communication to any specified person or persons until the end of a period not exceeding three months from the end of the period prescribed for the purposes of section 42.

(3) Where directions under this section are in force with respect to any application:

(a) if the application is made under this Act, it may be processed to the stage where it is in order for the grant of a patent, but shall not be published and any information relating thereto shall not be communicated and no patent shall be granted in pursuance of the application;

(b) if it is an application for an ARIPO patent, it shall not be sent to the ARIPO Office; and

(c) if it is an international application for a patent, a copy thereof shall not be sent to the International Bureau or to any international searching authority appointed under the Patent Co-operation Treaty.

(4) Where the Managing Director gives instructions under this section with respect to any application, he shall give notice of the application and of the directions to the Minister responsible for defence or the concerned Minister and the following provisions shall then have effect:

(a) the Minister responsible for defence or the concerned Minister shall, on receipt of the notice, consider whether the publication of the application or the publication or communication of the information in question would be prejudicial to the defence of Kenya or the safety of the public;

(b) if the Minister responsible for defence or the concerned Minister determines that the publication of the application or the publication or communication of the information would be prejudicial to the safety of the public, he shall notify the Managing Director, who shall continue his directions under subsection (2) until they are revoked under paragraph (e);

(c) if the Minister responsible for defence or the concerned Minister determines that the publication of the application, or the publication or communication of the information would be prejudicial to the defence of Kenya or the safety of the public, he shall, unless a notice under paragraph (d) has previously been given by the Minister responsible for defence or the concerned Minister to the Managing Director reconsider that question during the period of nine months from the date of filing the application and at least once in every subsequent period of twelve months;

(d) if on the consideration of an application at any time it appears to the Minister responsible for defence or the concerned Minister that the publication of the application, or the publication or communication of the information, contained in it would not, or would no longer, be prejudicial to the defence of Kenya or the safety of the public, he shall give notice to the Managing Director to that effect; and

(e) on receipt of a notice under paragraph (d), the Managing Director shall revoke the directions and may, subject to such conditions as he may deem fit, extend the time for doing anything required or authorised to be done by or under this Act in connection with the application, whether or not that time had previously expired.

(5) The Minister responsible for defence or the concerned Minister may, in determining a question under paragraph (c) of subsection (4):

(a) at any time after, or, with the consent of the applicant, before the expiry of the period prescribed for the purposes of section 42, consider the application and any documents submitted in relation thereto; or

(b) where the application contains information relating to the production or use of atomic energy or research into matters connected with such production or use, authorise the National Council for Science and Technology to study the application and any documents sent to the Managing Director in connection therewith and report to him as soon as it is reasonably practicable on the utility or otherwise of the patent applied for.

(6) Where directions have been given under this section in respect of an application for a patent for an invention and the period prescribed in relation thereto expires, and while such directions are still in force, an application is brought for the grant of a patent, then:

(a) if while the directions are in force, the invention is used by or with the written authorization of or on the order of a Government Ministry, Department or agency, the provisions of section 80 shall apply as if:

(i) the use was made pursuant to the provisions of that section;

(ii) the application had been published at the end of that period; and

(iii) a patent had been granted for the invention at the time the application is brought for the grant of a patent, taking the terms of the patent to be those of the application as at the time it was so brought; and

(b) if it appears to the Minister responsible for defence or the concerned Minister that the applicant for the patent has suffered hardship by reason of the continuation in force of the directions, he may, with the consent of the Ministry responsible for finance, make such payment by way of compensation to the applicant, as appears to be reasonable having regard to the inventive merit and utility of the invention, the purpose for which it is designed and any other relevant circumstances.

(7) If the applicant is dissatisfied with the amount of compensation paid to him under subsection (6), he may appeal to the Tribunal.

(8) Where a patent is granted in pursuance of an application in respect of which directions have been given under this section, no maintenance fees shall be payable in respect of any period during which those directions remain in force.

(9) A person who fails to comply with any direction under this section shall be liable, on conviction, to imprisonment for a term not exceeding two years, or to a fine not exceeding twenty thousand shillings, or to both.

Restrictions on applications abroad by Kenya residents

28. (1) Subject to the provisions of this section, no person resident in Kenya shall, without written authority granted by the Managing Director, file or cause to be filed outside Kenya, an application for a patent for invention, unless:

(a) an application for a patent for the same invention has been filed with the Institute not less than six weeks before the filing of the application outside Kenya; and

(b) either no directions have been given under section 27 in relation to the application in Kenya or any such directions have been revoked.

(2) Subsection (1) shall not apply to an application for a patent for an invention in respect of which an application for a patent has first been filed in a country outside Kenya by a person resident outside Kenya.

(3) A person who files or causes to be filed an application for the grant of a patent in contravention of this section shall be liable on conviction, to a fine not exceeding twenty thousand shillings, or to an imprisonment for a term not exceeding two years, or to both.

(4) In this section:

(a) any reference to an application for a patent includes a reference to an application for other protection for an invention;

(b) any reference to either kind of application is a reference to an application under this Act, under the law of any country other than Kenya or under any international treaty or convention to which Kenya is a party.

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