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Legislative Implementation of Flexibilities - Kenya

Title:Sections 41 (7), (8) and (9) and 44 of the Industrial Property Act No. 3 of 27/07/2001
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Filing date, examination as to form

41.-(7) The Managing Director shall cause an examination to be carried out as to whether there are any of the following defects with respect to the application:

(a)the request does not comply with the requirements of section 34(3) and the rules pertaining thereto;

(b) the description, the claims and, where applicable, the drawings do not comply with the physical requirements prescribed by the regulations;

(c) the application does not contain an abstract;

(d)the applicant has not complied with a request of the Managing Director under section 38; or

(e) the fees referred to in section 39 have not been paid as provided for in the regulations or the payment of such fees has been waived under that section.

(8) If the Managing Director finds any of the defects referred to under subsection (7), he shall invite the applicant to remedy such defects provided that any corrections made to the application shall not be such that they would require a change of the filing date and if the applicant does not comply with the invitation, the application shall be rejected by the Managing Director.

(9) The details of the requirements and the procedure under this section shall be prescribed by the regulations.

Examination as to Substance

44.-(1) The Managing Director may, by notice in the Kenya Gazette or in the Industrial Property Journal

(a) direct that applications for patents relating to a specified field or specified technical fields shall be the subject of an examination as to substance; or

(b) amend any direction issued pursuant to paragraph (a).

(2) Where an application for a patent satisfies the requirements specified in subparagraph (7) of section 41 and the subject matter thereof does not fall within a technical field specified under subsection (1) of this section, the Managing Director shall so notify the applicant who shall, within three years from the filing date of the application, submit a request in the prescribed form for the examination of the application pursuant to the provisions of subsection (3):

Provided that where no request is made within the prescribed period, the application shall be deemed to be abandoned.

(3) Where a request is filed under subsection (2), the Managing Director shall cause an examination of the application to be made as to whether

(a) the invention in respect of which the application is made is patentable within the meaning of this Act; and

(b) the application complies with the requirements of subsections (5) and (6) of section 34.

(4) For the purposes of the examination under subsection (3), the Managing Director may submit the application together with the relevant documents to an examiner or other competent authority for examination as to the patentability of the claimed invention and the examiner or other competent authority shall submit a report of the findings of the examination to the Managing Director who shall submit a copy thereof to the applicant.

(5) Save where an application is subject to an international-type search under section 43, the Managing Director shall cause an examination to be carried out as to whether the application complies with the requirements of unity of invention prescribed under section 35 and the rules pertaining thereto.

(6) If the Managing Director is of the opinion that the requirements of unity of invention have not been complied with, he shall invite the applicant to restrict or divide the application:

Provided that where the applicant fails to do so, the Managing Director shall reject the application.

(7) Where, taking due account of the conclusions of any report referred to in subsection (5), the Managing Director is of the opinion that any of the conditions referred to in subsection (2) are not fulfilled, he shall notify the applicant accordingly and invite him to submit his observations and, where applicable, to amend his application.

(8) Where, despite any observation or amendment submitted by the applicant, the Managing Director finds that any of the conditions referred to in subsection (2) are not fulfilled, he shall refuse the grant of a patent and notify the applicant accordingly.

(9) The details of the requirements and the procedure to be followed under this section shall be prescribed by the regulations.

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