Intellectual property does not protect ideas, but the expression of ideas. The expression could be in the form of a product or even a method and any other form.
Today, we focus on the concept of Novelty, which is a requirement fo Patent registration.
Unlike copyright which requires expression of ideas to be original, the patent requires the expression of ideas to be novel/new. Original is not necessarily new.
Section 23 of Industrial Property Act, No. 3 of 2001 of the Laws of Kenya, (the Act) attempts to define or provide prerequisites for novelty. It states that an invention is new/novel if it’s not anticipated by the prior art.
This means that the patent should not be in existence or disclosed to the public before it’s registration. It should also not be obvious to an ordinary person having skills in the field /art/practice (PHOSITA).
During the registration process, the examination phase is two-fold. First, there is an examination as to form (deals with the application and procedural compliance) and second, the substantive examination (deals with compliance of substantive requirements such as novelty).
At this stage, the examiner is able to involve experts and make findings on the following:-
- Whether the content in the Patent application exists/is disclosed in the public domain and in any form (written, oral, prior use, exhibition among others);
- Whether the proposed invention /claim in the application differs from an already existing application;
- Whether it’s within the scope of PHOSITA.
- Whether PHOSITA would successfully invent the same while in the ordinary course of duty or through reference to the prior art.
During this exercise, the examiner or PHOSITA is not allowed to work backward in a bid to satisfy a consideration of novelty.
Patent certification is the highest measure of innovation, it is quite challenging, but, if attained, it is extremely rewarding.
In Kenya, the prior art has been expounded to include “everything made available to the public anywhere in the world” through written, oral disclosure, use, exhibition or other non-written means.
This is a high standard as competition is both locally and internationally, but again, it creates an opportunity for local innovators to focus inwardly for novelty, hence, obliterating competition outwardly.
To attain this, there is a need for investment in innovations through research and development (R&D) by SMEs and the government as well. There is also a need to create awareness of the protection mechanisms through the registration of Patents.