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The Industrial Property Tribunal and Intellectual Property Rights in Kenya – Kenyan Business Feed


Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions.

Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land.

The Industrial Property Tribunal was established in 1989 under the Industrial Property Act (Cap 509) of the Laws of Kenya which was later repealed and replaced by the Industrial Property Act, 2001.

The Tribunal is a court dealing with specialized areas of intellectual property recognized by the Constitution. It is a subordinate court as provided in the Constitution.

RATIONALE FOR ITS ESTABLISHMENT

The purpose of establishing The Tribunal was to provide an appropriate and specialized dispute adjudication mechanism for industrial property rights such as patents, industrial designs, utility models and technovations.

By establishing the Tribunal, it was intended that such disputes would be more speedily dealt with thereby encouraging owners of IP to enforce their rights.

Composition of IPT

The IPT consists of a chairman and four-members appointed by the Minister for Industrialization.[50] The chairman of the Tribunal should be a person who has been a judge or who is qualified to be appointed as a judge of the High Court of Kenya i.e. a person with at least ten years’ experience as a superior Court judge or professionally qualified Magistrate; or at least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field.

At least two members of the Tribunal should be persons who have, for not less than seven years, been qualified and entitled to practice as advocates in Kenya and the other two members must have experience and/or expertise in industrial, scientific and technological fields.

The sittings of the tribunal are discretionary as it sits at such times as it may appoint.

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Select decisions

In exercise of its jurisdiction and powers, the IPT has rendered several landmark decisions particularly on the standard of protection of Industrial Designs where it has sought to widen public space for innovation. For instance, in the case of Power Technics Limited –v- Power Engineering International Limited [68]the Requestor, Power Technics Limited filed a request under Section 106 of the Industrial Property Act seeking an injunction to prevent infringement of its registered Industrial Design No. 296. In its Statement of Case, the Requestor stated that it had designed Sectionalized tapered columns for street lighting sometime in 1998 and supplied them to various customers in Kenya and Tanzania. It was alleged that the Respondent had infringed the Industrial Design No. 296 by making, manufacturing and selling similar or identical streetlights. The Respondent’s reply was that the Requestor’s invention in Design No. 296 was not obvious, as it did not involve any inventive step having regard to what was common knowledge at the date of the application.

It was further submitted that the alleged invention was in the public domain since it was neither new nor original, the invention having been disclosed to the public and published in various catalogues. The Industrial Property Tribunal in finding that the Respondent had not infringed the design expunged Industrial Design No. 296 from the register stating that the evidence showed that tapered Sectionalized street poles were in existence in Kenya and elsewhere prior to Design 296 being registered. The Tribunal concluded that the evidence on record left no doubt that the invention embodied in Design 296 was in the public domain well before it was registered.

ARIPO

ARIPO means, African Regional Intellectual Property Organization

The Industrial Property Act makes patents granted by ARIPO as effectual and binding in Kenya as any patent that would ordinarily be granted by KIPI – Kenya Industrial Property Institute.

The Board of Appeal has In The Matter of Patent Grant No. AP 773 Entitled “Foot Operated Sanitary/Litter Bin” In The Name of Sanitam Services (EA) Limited [104]exercised its jurisdiction on appeal by reinstating on to the ARIPO register a patent which had been removed from the register by the ARIPO office for non-payment of maintenance fees.


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