Patents are granted for inventions that are new, non-obvious and that can be used in any kind of industry.
1.0 Requirements for filing a Patent Application
The Process of Patenting begins with filing an application for a Patent through form IP3. The requirements in filing the application are:
a request made through IP3;
a description;
one or more claims;
one or more drawings (where necessary); and
an abstract (See descriptions below)
1.1 The Request
The request contains the Title and the particulars of the Applicant and/or the inventor
1.2 Description
The description discloses the invention and at least one mode for carrying out the invention in such full, clear, concise and exact terms as to enable any person having ordinary skills in the art to make use and to evaluate the invention.
The description includes:
The title of the invention
The technical field to which the invention relates;
The background art which, as far as it is known to the applicant, can be regarded as useful for the understanding, searching and examination of the invention; and
An indication of how the invention is industrially applicable
1.3 Claims
The claim or claims define the features of the Patent for which protection is sought. It should be clear and concise and fully supported by the description. In defining the matter for which protection is sought, a claim should set out
The technical features that are necessary to define the subject matter of the invention but that are part of the prior art; and
The technical features that, in combination with the features referred to in paragraph (1) above , define that for which protection is sought.
1.4 Drawings
If there are any drawings of the invention the same should be provided in the application. It is prudent to provide such drawings as they buttress the claims
1.5 Abstract (150 Words Maximum)
The abstract serves the purpose of technical information. It is not taken into account for the purpose of interpreting the scope of the protection sought. It includes the title of the invention and a summary of the disclosure included in the description. The summary indicates the technical field to which the invention relates and the principal use or uses of the invention.
The abstract is drafted in a way that it can be used efficiently for searching in the relevant technical field and so that it is possible for a reader to assess, from the abstract, whether the description should be consulted.
2.0 Process of Patenting
The steps for patenting are as follows:
2.1 Prepare the Patent Application
2.2 File the Patent Application
2.3 Formalities Examination
Here, KIPI will establish whether the Applicant has complied with all the requirements under the Law for filing an Application. If one has not fully complied with the requirements, they will be invited to make amendments to the Application. If the Application has complied fully with all requirements, it will proceed to substantive examination.
2.4 Amendment of Application
2.5 Advertisement of the Patent
The Patent can only be published in the KIPI Journal 18 month after the date of filing. This give notice to the whole world of the Application.
2.6 Substantive Examination
This will usually involve a determination of whether the Patent is new, non-obvious and whether it can be applied in the industry. The Application for Substantive examination should be done within 3 years of filing the Application.
2.7 Approval or rejection of Application
If the approval meets all the requirements, it will be granted. If it does not meet the requirements it is rejected. In case of rejection one may object the same.
2.8 Objection of Rejection
2.9 Examiner reconsiders and either approves and/or calls for further objections r rejects the application
2.10 If final decision is rejection one may Appeal
2.11 Grant of Patent
2.12 Publication of Grant
3.0 Cost involved in Patenting
Application Fees
KES 3 000.00
Request for Amendment
KES 2 000.00
Publication of Patent
KES 3 000.00
Request for Substantive Examination
KES 5 000.00
Fee for Grant of Patent
KES 3 000.00
Miscellaneous
KES 3 000.00
There are also annual fees paid every year for the 20 years in which the Patent is granted. The same range from KES 2 000.00 to KES 50 000.00.
As regards legal fee, The Advocates (Remuneration) (Amendment) Order 2009 sets the minimum fee to be charged for professional services rendered. In this case professional service fee is determined by the Remuneration Order, the amount of work and various complexities involved in the same.
Anthony Gakuru
Associate - Njoroge Regeru & Co. Advocates
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The Marriage Bill is currently undergoing internal review and stakeholder consultation. It is a Bill for an Act of Parliament that is meant to amend and consolidate the various laws relating to marriage and divorce and for connected purpose. Since the 21st of August 2012, the Commission for the Implementation of the Constitution (CIC) has been holding a plenary to deliberate on the Family Law Bills. The Plenary is amongst the final stages of deliberations before the bills are transmitted to the Attorney General for publication. This follows the incorporation into the bills the views expressed by the participants at various forums as well as those received in writing.
Among the key laws that the Commission for the Implementation of the Constitution, CIC received following the swearing in of Commissioners in January 2011 was the Family Law Bills (The Marriage Bill, The Matrimonial Property Bill and The Protection against Domestic Violence Bill). The Family Law Bills give effect to Article 45 of the Constitution which provides for family.
In the review process, CIC has facilitated stakeholder participation through technical and stakeholder forums, public forums in different counties and more recently a meeting with religious leaders and community elders to discuss the provisions on the Family Law Bills. The meeting brought together community elders from the Maasai, Gusii, Pokot, Ogiek and Kuria Communities as well as religious leaders from various denominations within the Christian Faith, Muslim, Hindu and Baha'i religious groups.
Among the key provisions that formed the basis for discussion in the various forums included but not limited to:
Whether or not to retain the practice of Dowry Payment: The debate relating to payment of dowry was based on whether the law should provide for dowry payment as a compulsory measure. This was in light of the fact that article 45 of the Constitution recognizes marriages concluded under traditional system of which payment of dowry is one such recognized customary practice.
Polygamous marriages: While the participants acknowledged the polygamous nature of some of the marriage systems, the push towards legislating for a system that will subsequently ensure implementation of monogamous marriages was evidenced by arguments put forward including reference to the Protocol on the African Charter on Human and People's Rights on the Rights of Women in Africa (Maputo Protocol) article 6 which provides that "monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships are promoted and protected."
Presumption of Marriage: Participants debated upon the provision on presumption of marriage arguing that recognition of cohabitation as a system of marriage where two parties have cohabited for two years and acquired the reputation of being husband and wife, as being contrary to religious teachings of marriage as a sacred covenant that can only be accorded by taking the vows of marriage. It was also proposed that presumption of marriage could be retained but protection measures put in place to protect the husband or wife from exploitation by either spouse.
Protection of Family "members" against domestic violence: The participants also debated upon the scope of persons or members of the family that should be covered in protected by the law on protection against domestic violence.
It is our responsibility to ensure that social stability as well as economic development is protected by ensuring that the legislation passed promotes families as the building blocks of Kenyan society. This will promote democracy and good governance.
The National Intelligence Service bill, 2011 seeks to operationalize articles 239 and 242 of the Constitution which establishes the National Intelligence Service as a national security organ. The service is composed of the Director General, Directors and such other officers of the service as appointed under the Act. The key functions of the service as listed under clause 5 of the bill include conducting investigations and gathering information relating security intelligence to enhance national security and identifying any threats to national security.
The service is to be headed by a Director General. One of the key features of the bill is that the President has the power to appoint the Director General but this power is subject to an approval by the National Assembly. This therefore means that it is the National Assembly, which is more representative in nature, which has the final word on who becomes the Director General.
The bill lays a framework for the maintenance of professionalism and adherence to the principles of leadership and integrity by mandating the Director General to issue and maintain both a disciplinary code for the service and a code of conduct and ethics for officers of the service which codes must specifically prescribe for professional conduct, political neutrality, conflict of interest, conduct of private affairs, dealings with foreigners and submission of declarations.
However, the consequences of misconduct are grave and should be handled by an independent body to avoid abuse of this punishment. The meting and disciplinary procedure can be handled by the Complaints Commission and not the Director General. This will safeguard the process of from being abused.
Clause 20 of the bill expressly prohibits officers of the service from subjecting any person to torture or to any other cruel and inhuman or degrading treatment. This provision is aimed at protecting the right to freedom and security of the person as established under article 29 of the Constitution. It is important to note that under article 25 of the Constitution the fundamental right and freedom from torture and cruel, inhuman or degrading treatment or punishment can not be limited. The National Intelligence Service bill therefore seeks to ensure that the officers of the service do not violate the Constitution.
The bill further lays a framework for upholding the right to privacy by providing the procedure under which officers can enter and conduct searches in any private premises or seize any material or monitor communication. Under Clause 31, the Director General may make an ex-parte application for a warrant to a judge of the High Court where it is necessary to investigate any threat to national security.
The National Security Council, as established under article 240 of the Constitution, shall exercise supervisory control over the service. The bill also establishes the National Intelligence Council whose function is to advise the service on matters touching on national security and intelligence policies, administration and expenditure of the service. The membership of this council includes the Attorney General but excludes the Director of Public Prosecutions.
The final oversight organ of the service is the Complaints Commission as established under clause 34 of the bill. The commission consists of members appointed by the President on the recommendation of the Judicial Service Commission. The power of the Judicial Service Commission, a judicial organ, to recommend members to the Complaints Commission as provided for under the bill seems to offend the principle of separation of powers since the National Intelligence service falls within the ambit of the executive arm of government. This role should be performed by the National Intelligence Council.
Clause 35 (5) the recommendation of the commission does not bind the president or the council. There is no mandatory requirement for the President and the Council or the Director-General president to act in accordance with the recommendations.
Clause 39 which provides for destruction of classified information and records. This can be abused to conceal records that are of scandalous nature. It is only fair and just that an Intelligence Service retains classified information and records which can be de-classified at some point in future when circumstances so dictate or a time line be provided of after how long the records can be destroyed. It is also in conflict with article 35 of the constitution.
The bill has captured most of the requirements laid down under the Constitution especially with regard to the bill of rights; however it seems not to take cognizance of the devolution structures as contemplated under the Constitution. It goes without saying that the County governments will definitely need the services of this important security organ hence the need to have county intelligence divisions.
The Assumption of the Office of the President Bill, 2012 is a bill that intends to provide for the procedure and ceremony for the assumption of the Office of President by the President-elect, in accordance with Article 141 of the Constitution. The principal object of the Bill is to operationalize the provisions of Article 141 of the Constitution on the procedure and ceremony for the assumption of the Office of President.
It achieves this by making provisions on the requisite arrangements for assumption of office by the President-elect including the establishment of the Assumption of the Office of President Committee and providing for the procedure for assumption of the Office of President by the President-elect.
The country's next President will be sworn-in fourteen days after being declared the winner. The Assumption of the Office of the President Bill, if passed will also see that the next president is sworn-in at a public ceremony in Nairobi. Clause 12 (1) of the Bill provides that the swearing in of the President - elect shall be conducted in a public ceremony held in the capital city in accordance with Article 141 of the Constitution.
This law will provide a clear framework for handing over power from one President to another. It will have clear time-lines on the swearing in process.
During the ceremony, the deputy President-elect shall also take and subscribe the oath or affirmation of allegiance and oath or affirmation for the execution of the functions of office in accordance with Article 148 of the Constitution. This is a departure from the past when a Vice-President would be sworn in together with the rest of the Cabinet on a different day after being appointed by the President.
The Bill provides for the establishment of the Assumption of the Office of President Committee. The Committee shall publish, by notice in the Gazette, the date and place for the conduct of the swearing-in ceremony. Not only will the committee managing the transition be publicly known, it will also be expected to keep a record of all proceedings for publication in the Kenya Gazette, according to the draft Bill. In a deliberate move to make the process transparent and accountable, the committee is required to prepare a report within three months from the date of the swearing in. The report shall contain the financial statements, a description of its activities and any other information relating to the functions of the committee. The chairperson of the committee shall convene the first meeting at least 30 days before the date of the General Election.
This Bill if passed will therefore make the handing over of power from President Kibaki to the next President fair and transparent a far cry from the chaotic spectacle in which President Kibaki took the reins of power from President Moi in 2002.
THE NATIONAL SECURITY COUNCIL BILL, 2011 is a Bill for An ACT of Parliament to give effect to the Constitution; to provide for the functions of the National Security Council; to provide for the appointment of the Secretary to the Council; to provide for the establishment and functions of the County Security Committees; and for connected purposes. The Bill's objects are in the Nation's interest, but nevertheless concerns pertaining to its provisions and drafting cannot escape from being raised.
The fourth schedule of the Constitution distributes various functions between the national government and the county government. National defense and the use of National Defence Service are a listed amongst the functions of the National Government. Clause 8 of the National Security Bill establishes a County defense Committee that is mandated to manage and deliver various security-related functions at the county level. Isn't National Security a preserve of the National Government? Isn't this going to create a clash between the two governments in performing/ the delivery of this mandate as both governments are distinct and self-regulating?
Why has the Governor been omitted from the membership of the County Security Committee?
The composition of the committees created under the Bill should be in tandem with the principles reflected in Article 10 of the Constitution. In appointing the committee members, the persons making up/ comprising the committees should reflect ethnic and gender parity.
Clause 13 expressly curtails the right to access information/ limits the right to access information to the extent set out in the Bill if such disclosure may be injurious to the country's security and if the information is classified. Article 35(1) of the Constitution guarantees every citizen's right to access information. Article 35(3) further provides that the State shall publish and publicize any important information affecting the nation. An obligation to avail such information thus arises on the part of the State. Therefore, everyone has the right to access to information held by the state and this includes the right to seek, receive, re-use and impart information held by or on behalf of the government and other statutory agencies. A clear line should thus be drawn to ascertain on what amounts to classified information that could pose a threat to the national security in order to ensure that the right to access information is not curtailed and that a conflict of law does not arise between the Constitution and the Bill.
Economic security also falls under the tenets of national security; national security is not just restricted to military might. As such, national security should not be strictly restricted to matters of defense in their entirety but also to other issues which may pose a threat to our nation's well being; such as economic competition from other organizations or corporations and environmental issues. Food security as well as infrastructural developments should also not be overlooked.
Lastly, the Bill should ensure that its objects strive to uphold the principles of National Security as reflected under Article 238(2) of the Constitution which states:
The national security of Kenya shall be promoted and guaranteed in accordance with the following principles––
national security is subject to the authority of this Constitution and Parliament;
national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya;
recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.
Prime Minister Raila Odinga this week warned against rising levels of ethnicity in the country as we prepare for the coming presidential elections. The Prime Minister asked leaders campaigning for office to stay away from ethnic based politics. He said that the implementation of the leadership and integrity clauses in the Constitution would be crucial in enhancing national cohesion and adding integrity among leaders. In light of this, the Leadership and Integrity bill could not have come at a more crucial time. With the general elections getting ever closer and with two of the main presidential contenders facing charges the International Criminal Court (ICC) at The Hague, the question many are asking is 'will they be allowed to run or not?'. With the Leadership and Integrity bill, the more apt question would be, 'should they run for the presidential position?'
The Leadership and Integrity bill seeks to give legislative weight to chapter 6 of the constitution. This particular chapter dwells on Leadership and Integrity and lays out the requirements for one to qualify as a public servant. Having survived massive scandals such as Anglo Leasing and Goldenberg, Kenya has proven that it has had its fair share of leaders with questionable Integrity. Most voters rarely take into account a prospective leader's past record on such matters. The new constitution was meant to change all this. There have been ministerial resignations and some have even been charged in court, but there is yet to be a high profile conviction. Some of the cases are still pending over some technicalities, other cases were out rightly dismissed while others who had been charged even got reinstated back to the public offices they held before.
The Bill has been sponsored by the Ministry of Justice and Constitutional Affairs. It should be noted that the Justice Minister Mutula Kilonzo has been vocal in his opinion that two individuals who have cases at the ICC should not vie for Presidency. The Leadership and Integrity bill crucially provides that individuals that have been convicted of crimes or have been struck off the roll of a professional body due to misconduct would be unable to hold office.
The Bill provides a basic, yet thorough guideline as to the conduct of State Officers. It expects them to adhere to a strict code of conduct that sets them apart and brings dignity to their offices. It gives several guidelines that are intended to prevent abuse of office and corruption.
Officials are expected to uphold family values and provide for their families. They are supposed to carry themselves in a manner befitting their office which means upholding high moral standards in their every day life even when not acting in an official capacity.
It has a provision that gifts given to public officers in the exercise of their official duties will be deemed as gifts to the state. It also bars state officers from soliciting contributions on behalf of the government, giving the contingency fund as the option to obtain money in times of emergencies.
The Bill seeks to promote citizen involvement as it allows for the reporting of incidences of state officers flouting provisions. It provides protection to such individuals should they give such information willingly and in good will. It also provides for immunity for individuals who publish occurrences of misuse of office provided the said information was to the best of the publisher's knowledge.
Leaders will be expected to declare their wealth as a compulsory measure for all State Officers. They are meant to declare their wealth 30 days after swearing in, again during their tenure and then once more 30 days after they leave. It is also interesting to note that the documents are not to be destroyed till after a period of 30 years elapses.
Another major issue that has been addressed is that of conflict of interest. Section 17(1) states "A State officer shall use his or her best efforts to avoid being in a position in which his or her personal interests conflict with his or her official duties". State officers are required to place themselves in a position that prevents them from conflicting with their official duties such as owning shares in companies that they may eventually deal with.
It is clear that the Bill has some very well meaning provisions. However, with the current political climate, it will be interesting to see whether or not the bill will be passed, considering it would affect many of the people expected to pass it. Kenyans ought to see to it that the leaders they choose are people who have integrity and can give real meaning to the title 'Leaders'.
On 24th July 2012, President Mwai Kibaki assented to various Bills which play a crucial role in realizing Kenya's social, economic and political growth. The Bills are as follows:
➢ County Governments' Bill 2012
➢ Public Service Commission Bill 2012
➢ National Authority for Campaign Against Alcohol and Drug Bill
➢ Public Financial Management bill
➢ Cancer Prevention Bill 2012
Cancer Prevention Bill 2012
The Cancer Prevention Bill 2012 as passed by Parliament is aimed at boosting access to cancer treatment and care. Under the Bill, a National Cancer Institute is established in order to promote and secure establishment of hospitals, vocational treatment and care centres for treatment and care of cancer patients. It also seeks to help in the spreading out cancer treatment facilities and in training more oncologists. Cancer has become one of the main causes of death in Kenya with 82,000 cases being reported annually.
Public Service Commission Bill 2012
Public Service Commission Bill 2012 is in pursuance of Article 233 of the Constitution for the purpose of making further provisions as to the functions and powers, and the administration of the Public Service Commission established under Article 233 of the Constitution; the qualifications and procedures for the appointment of the chairperson, members and secretary of the Commission, and related purposes
County Governments' Bill 2012
The Bill aimed at giving effect to Chapter Eleven of the Constitution which makes provisions for a devolved government; to provide for county governments powers, functions, and responsibilities to deliver services and to provide for other related purposes.
Public Financial Management Bill 2012
The Bill was out to promote transparency and accountability in the management of public finances at the National Government and County Government, overseeing the Parliament and county assemblies including the different responsibilities of government entities and other bodies.
National Authority for Campaign against Alcohol and Drug Bill 2012
The Bill sought to co-ordinate the implementation of the National Action Plan on curbing drug abuse by citizens of Kenya. It also promotes collaboration with other institutions, agencies or organizations, facilities for coordination of public education against drug abuse.
The presidential assent of the Bills now makes them Laws/Acts of parliament.
This is an Act of Parliament that was passed to make minor amendments to statute law. The passage of this Act, serves to underscore the government's commitment to watch out for any lacuna in the law that might serve to impede effective governance and thus undermine the implementation of the Constitution.
The President assented to the Statute Law on the 6th of July 2012.
Earlier on, there were a number of very controversial amendments that had been introduced. These amendments included the amendment of the Political Parties Act 2011, the Elections Act 2011 and the Vetting of Judges and Magistrates Act 2011. These amendments had the effect of negating the very constitutional principles upon which they were enacted. Many were therefore strongly opposed to the amendments. This is because the current parliament is on its last days before the General Elections thus the amendments were being made with a measure of bias and self interest.
The President however assented to the Statute Law (Miscellaneous Amendments) Act after Parliament deleted clauses that sought to legitimize party hopping and a mandatory degree for Member of Parliament.
Parliament also deleted clauses of the Election Act, which raised the minimum qualification to hold political office to the level of university education.
The Act also contains a raft of other significant developments. Some of the changes that come with the Act include;
Amendment of the provisions of the Elections Act, thereby enabling the Speaker of the National Assembly to issue writs for the pending by-elections in Ndiwa, Kajiado North and Kangema Constituencies; which he did and the Independent Electoral and Boundaries Commission (IEBC) has already announced the 17th of September as the by-election date for the constituencies.
Amendment of the Vetting of Judges and Magistrates Act, 2011, has extended the term of the Board to 28th February 2013 so as to facilitate the vetting of Judges of the High court and review of the cases lodged by the court of Appeal judges which had stalled;
By amending the Truth, Justice and Reconciliation Act No. 8 of 2008, the Act has extended the tenure of the TJRC to allow it prepare its report and wind up its activities as contemplated by law;
By amending the National Cohesion and Integration Commission Act No. 12 of 2008, the Act has permitted the reappointment of members of the National Cohesion and Integration Commission for another term;
Amendment of the various provisions of criminal justice laws previously conferred upon the Attorney General, the same has been conferred to the Director of Public Prosecutions;
By amending the Sexual Offences Act No. 3 of 2006 the Act protects the victims of sexual offences and gives them a measure of protection when reporting sexual abuse ;
By amending the National Crime Research Centre Act No. 4 of 1997 so as to bolster membership of the Governing Council of the Centre by incorporating the representations from Treasury and office of Director of the Public Prosecutions respectively;
By amending the Environment and Land Court Act No. 19 of 2011 the Act has enhanced the capacity of the court as a specialized division of the High Court set up to expeditiously determine land and environment cases;
By amending the Civil Procedure Act Cap 21 the Mediation Accreditation Committee is established which seeks to promote Alternative Dispute Resolution (ADR) as an alternative form of justice dispensation.
The controversies that accompanied this omnibus bill, is a clear indication of why Kenyans should pay closer attention when new laws are being made. The parliamentarians were going to sneak in laws that were motivated by their own selfish interests and had it not been for the public outcry that followed, they probably would have succeeded. The need for extra vigilance cannot be over emphasized.
