14.5 Intellectual property; Plant breeder’s patents, trademarks, copyrights and industrial designs

Plant Breeder’s Patents

Patents are a form of intellectual property protection granted to inventors and innovators for their inventions or discoveries.

The patentee’s rights

• To be granted a patent, subject to the substantive and procedural legal requirements
• Exclusive rights to make, import, sell, offer for sale or use the product which is covered by the patent
• The rights to exclude all other persons from dealing with the patent
• The right to exploit the patent through contractual licensing and assignment
• The right to receive royalties in the event of compulsory licensing

Obligations of the patentee

Disclose the invention toKenya Industrial Property Institute(KIPI).

• • Lack of title to the trade mark.
  • Non- registration of the trade mark
  • Non – use of the trade mark
  • Confusion
  • • The name of the company, firm or individual represented in a special or particular manner.
    • An invented word.
    • Any distinctive mark.
    • • That the invention had been published and therefore lacked novelty.
      • Absence of specificity in the claims i.e. the claims are not specific
      • • Duty to pay the prescribed fees.
        • Obligation to refrain from unfair, abusive and uncompetitive terms and provisions in contractual terms and licences, assignments or patent applications.Non-patentability of the subject matter because of exclusions.The signature of the applicant.InnocenceGive information concerning foreign corresponding applications and grants.

        Infringement of patents

        A person infringes a patent if he does any of the following:

        • If the invention is a product, he makes, disposes, uses or imports the product or keeps it for destruction or otherwise.
        • If the invention is a process, he uses it or offers it for use when he knows that there will be an infringement.
        • He supplies the means essential for putting the invention into effect to a person not entitled to work with the patent.

         

        Defenses to Patent Infringement

      Trademarks

      It is any sign capable of being represented graphically and which is capable of distinguishing goods and services of one undertaking from those of another.

      The following particulars are required for the registration of a trademark:

    Infringement of trademarks

    It occurs when any person without permission uses in the ordinary course of business a mark identical to the registered mark or something similar as to likely deceive or cause confusion.

    The plaintiff is entitled to bring a passing-off action but must prove:

    • That the two businesses operated under same line.
    • Some of his customers got confused by defendant’s action.

    Defence

  Remedies

  When infringement occurs the owner is entitled to

  • An injunction restraining the wrong doer from his infringing activities.
  • Damages assessed on loss of profit arising from the infringement.
  • An order for destruction of the offending goods.
  • Self-help remedies where the proprietor of a trade mark takes out an advertisement and promotional campaigns.

   

  Copyrights

  Copyrights protect original creative works of authorship, including literary, artistic, musical, and other intellectual creations. Copyright holders have the exclusive right to reproduce, distribute, and display their works.

  Rules of copyright

  1. It subsists automatically upon the creation of the work. It need not be granted or registered

  .b. It governs both primary and secondary works.

  1. The subject matter must be original;
  • It originates from the author and no one else
  • It is not a copy
  • The work embodies skill, judgement, labour and effort
  1. Ideas in the mind don’t count as copyright.

   

  Rights of a copyright owner

  1. a) To copy the work including storage in any media by electronic means
  2. b) To issue copies to the public
  3. c) To perform show or play the work in public
  4. d) To broadcast the work
  5. e) To make an adaptation to the work

   

  Infringement of copyrights

  Occur when a person without the consent of the copyright owner contravenes the right of the owner. Secondary infringement occurs when a person makes some work available to another knowing that infringing copies will be made on publication

   

  Remedies

  • Suit for damages.
  • Suit for injunction.
  • Order for delivery of the goods or destruction of the infringing goods.
  • Accounting for loss of profit.

   

  Industrial designs

  Industrial designs protect the visual design and aesthetic aspects of useful objects, such as product shapes, configurations, and ornamentation.

  • Eligibility: Industrial designs must be new and original to be eligible for protection.
  • Rights: Owners of registered industrial designs have the exclusive right to use, manufacture, and license the design for a specified period.
  • Examples: Industrial designs protect the unique shape of a smartphone, the design of a chair, or the appearance of a vehicle.