Articles
INTELLECTUAL PROPERTY (IP) COMMERCIALIZATION IN KENYA:
A SITUATIONAL ANALYSIS OF PATENTING AND CHALLENGES FACEDTOWARDS ITS COMMERCIALIZATION
2025 Volume 2025 Issue 106 Pages 1-72
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2025 Volume 2025 Issue 106 Pages 1-72
In today’s rapidly evolving global landscape, the interplay between innovation and intellectual property rights (IPR) has become increasingly critical. Modernization and technological advancements underscore the necessity of effective Intellectual Property Rights Protection (IPRP) as a key determinant in how inventors and innovators can capitalize on their creations. IPRs not only safeguard the interests of creators but also establish the framework within which inventions can be commercialized, influencing their potential value across various industries. A strong IPR system incentivizes investment in research and development (R&D), fostering an environment conducive to innovation and ensuring that inventors can reap the benefits of their hard work.
Patents play a pivotal role in this ecosystem, providing innovators with legal protections that grant them exclusive rights to their inventions for a period of approximately 20 years. This protection enables them to recover R&D costs and generate revenue, thereby facilitating access to both local and international markets (Husted et al., 2016). In this context, the effective management of IPR is not just a legal requirement; it is an essential driver of economic growth, competitiveness, and sustainable development.
The significance of IPR protection is further emphasized in the context of global initiatives like the 2030 Agenda for Sustainable Development Goals (SDGs), which aligns with Kenya’s Vision 2030. These frameworks highlight the importance of fostering innovation and creativity to tackle pressing national and global challenges. When properly managed, patentable intellectual property can lead to the commercialization of innovative solutions, creating wealth and job opportunities that are crucial for socio-economic development.
In Kenya, there has been a notable increase in patent applications, both locally and regionally, driven by various factors. This growth is reflected in government development strategies and the enactment of numerous IP protection laws. Universities, in particular, have established technology transfer offices (TTOs) tasked with managing patent applications and supporting academic startups. These offices aim to bridge the gap between research and market application, facilitating the translation of innovative ideas into viable products and services. According to the African Regional Intellectual Property Organization (ARIPO), Kenya ranks among the top five designated states for patent applications, accounting for 7.7% of the designated 8,340 applications made regionally.2 Despite this progress, however, the percentage remains low on a global scale, especially when compared to developed countries.
Source: WIPO 2022
The World Intellectual Property Organization (WIPO) has also played a crucial role in enhancing Kenya’s patenting landscape through the establishment of Technology and Innovation Support Centers (TISCs). These centers serve as a vital resource for researchers, inventors, and entrepreneurs by providing access to a wealth of intellectual property information and support services.3 By facilitating training sessions, workshops, and advisory services, WIPO helps strengthen local capacities in patent research and analysis. TISCs aim to bridge the gap between research and commercialization by equipping innovators with the necessary tools to navigate the patenting process effectively. This collaboration not only promotes greater awareness of intellectual property rights but also fosters an environment conducive to innovation and technological advancement in Kenya, ultimately contributing to the country’s economic growth and development.4
However, the existing gap between the growing number of patent applications and the actual commercialization of research outputs raises critical questions. While the framework for protecting intellectual property is in place, many patented innovations in Kenya are not successfully brought to market. The factors contributing to this disparity are complex and multifaceted. Research indicates that while awareness of the importance of IPR is increasing, the actual engagement in patenting and commercialization remains minimal. This phenomenon is particularly evident in academic institutions, where most R&D activities are concentrated.
Commercialization, as defined by Fakour (2009), refers to the process of making ideas or products available in the market. It involves a series of steps: idea generation, research, development, licensing, marketing, and monitoring. Jock Gammon (2017) elaborates on this by describing research commercialization as the transformation of ideas into marketable products and services that generate income. This process is crucial for the industrialization of any country, as it allows enterprises to turn innovative concepts into profitable ventures.
Despite the clear benefits of a robust patenting and commercialization system, challenges persist. Factors such as inadequate funding, lack of awareness among entrepreneurs about the significance of IPR, and insufficient coordination among stakeholders hinder effective utilization of IP commercialization strategies. For instance, many companies are unaware of the tools available to safeguard their intellectual assets, leading to missed opportunities for investment and innovation. Furthermore, the Kenya Industrial Property Institute (KIPI) faces challenges in managing patents, as the number of registrations is significantly lower than the investments made in R&D.
1.2 RESEARCH QUESTIONSIn light of these challenges, this study aims to address the following research questions:
1.3 STATEMENT OF THE PROBLEM1. What are the key factors influencing the low rate of patent applications and commercialization of research outputs in Kenya?
2. What measure can be taken to facilitate more innovation of IP products among entrepreneurs and researchers to enhance the commercialization of innovations in Kenya?
Despite concerted efforts to promote intellectual property (IP) protection and commercialization strategies within various industries, significant challenges persist in their implementation and effectiveness in Kenya (Ampaire et al., 2020). While the country has made strides in developing its IP legislative framework and institutional capacity, barriers continue to impede the effective utilization of IP commercialization strategies to catalyze innovation (Kioko et al., 2019). For instance, technology transfer offices in universities which are mandated to coordinate technology transfer activities from research and development, filing of patent applications and offering support to academic startups receive very minimal commercialization of research outputs.
A major challenge arises from the lack of awareness and understanding of the importance of IP protection and the tools available to safeguard intellectual assets among companies and entrepreneurs (Githaiga & Waema, 2018). This knowledge gap often leads to insufficient investment in IP protection, hindering businesses from fully leveraging their innovations and competing on a global scale. Therefore, improving awareness and education about the significance of IP protection and its potential benefits for businesses in Kenya is crucial.
Moreover, insufficient support, coordination and collaboration among government agencies, industry associations, and academic institutions have resulted in fragmented policies and strategies that hinder the promotion and protection of innovation.5 Addressing these issues requires a collective effort from all stakeholders to develop and implement comprehensive policies, improve institutional coordination and collaboration, and reduce costs and barriers for innovators and small to medium-sized enterprises (SMEs).
The IP commercialization challenge is not only prominent in developing countries like Kenya in this instance but also affects well developed countries like Japan and the US. To expound more on this point, it was reported by the Japan Patent Office that in the year 2022, Japan had an estimated 220,000 patent applications from its companies.6 However, only about 20% of these applications were from small and medium sized enterprises (SMEs). This is of concern because the SMEs in Japan form over 99.7% of the total 3.38 million companies and only 0.3% account for the big companies.7 In contrast, the big companies accounted for over 80% of the total patent applied in the year 2022. One reason for this is the fact that the big companies have the resources and systems in place to fully utilize and commercialize their patents unlike SMEs. SMEs simply lack the resources and the education (awareness) of the importance of IP commercialization. This is very crucial taking into consideration that SMEs and startups rely on the protection of IPR in order to reap benefits through its commercialization.
In light of these pressing challenges, there is an urgent need for empirical research and analysis to understand the effects of intellectual property strategies on innovation and subsequent commercialization in Kenya’s industries. By pinpointing and addressing the fundamental issues and barriers that impede the effective use of IP commercialization strategies, governments, industry stakeholders, and researchers can work together to create an environment that promotes innovation-driven growth and sustainable development.
1.4 OBJECTIVES OF THE STUDY1.5 METHODOLOGY AND JUSTIFICATION OF THE STUDYi. Determine the status of Patenting of IP in Kenya and its implication for innovation and economic development;
ii. Determine the status of commercialization of IP in Kenya;
iii. Determine the various factors that promote and impede Patenting and commercialization of IP in Kenya.
Intellectual property rights, which play a key role in creating jobs and increasing income, are essential in the fourth industrial revolution economy. In this paradigm, many economic actors are focusing on intellectual property management, and efforts to ultimately achieve sustainable growth of companies are increasing by establishing strong intellectual property rights. The purpose of this study is thus to form methodological provisions and practical recommendations regarding methods and strategies for commercialization of intellectual property objects specifically in patenting as it is directly synonymous with innovation in the field of industrial production. This provides a real opportunity to apply the results in practice at an industrial enterprise. To achieve the set goal, it is necessary: to identify and systematize the process & challenges to patenting and commercialization of intellectual property in Kenya, and to identify practical methods of which can be used to solve the identified problems.
The main hypothesis of the study assumes the need to intensify the commercialization of intellectual property objects in Kenya to foster economic growth. Its relevance is explained by the need to improve methods and strategies for the protection of intellectual property products demanded by the market especially through patenting, with the simultaneous maximization of the effect of its promotion. This will significantly increase the efficiency of commercialization of IPRs and the competitiveness of IP products.
To achieve the objectives, the study employed a desktop research design to collect and analyze existing data from various sources. This approach is costeffective and enables the acquisition of pertinent data from diverse outlets, including academic literature, industry reports, third-party data repositories, and online platforms (Bryman & Bell, 2018). The chosen design is well-suited for the study as it facilitates insights into trends, industry norms, user behaviors, and best practices concerning intellectual property strategies and innovation within the Kenyan and Global landscape.
Historically, the original intellectual property laws stemmed from colonial influences that were implemented to serve imperial interests (Sikoyo et al., 2006). Following independence, these laws were repealed and/or revised to better align with the country’s economic context, technological capabilities, and priorities. The intellectual property rights that are presently acknowledged in Kenya include patents, copyrights, trademarks and service marks, utility models, plant breeders’ rights and industrial designs. This section will focus on the Laws governing patents, copyrights, trademarks and service marks and utility models as summarized below:
Industrial Property Act, 2001This Act, along with its implementing Regulations, governs the granting and management of patents, utility models, and industrial designs. Its objectives include fostering inventive and innovative activities and facilitating technology acquisition through the regulation of patents and related protections. It establishes the Kenya Industrial Property Institute (KIPI) and the Industrial Property Tribunal. The Kenya Industrial Property Institute (KIPI) is responsible inter alia for examining and granting patents in Kenya. The Act also outlines criminal and civil enforcement measures, licensing agreements, and specifies the protection durations for patents, registered utility models, and industrial designs as 20, 10, and 15 years, respectively.
Trademarks Act, Cap 506This Act and its implementing Rules provide for the protection of trade and service marks in Kenya. It details the registration requirements for trademarks, the examination process, and the publication of trademark applications in the Kenya Gazette or the Industrial Property Journal. The Act includes provisions for opposition proceedings, an initial registration period of ten years for marks, which can be renewed every ten years, as well as licensing, assignment of marks, and maintaining the Register of Marks for changes in name or address, as well as expungement procedures. It includes comprehensive protections against trademark infringement and criminalizes the sale or importation of goods bearing forged registered trademarks. Infringement cases are adjudicatedby the High Court. While the Act does not explicitly mention geographical indications, they can be protected as collective marks; however, a substantive Geographical Indications Bill is still pending in Parliament.
The Copyright Act, 2001This Act establishes provisions for copyright protection in literary, musical, and artistic works, as well as audio-visual materials and sound recordings. It creates the Kenya Copyright Board (KECOBO), responsible for administering the Act, which includes licensing Collective Management Organizations (CMOs) and supplying tamper-proof stickers for authenticating genuine products.
Additionally, there are four (4) autonomous institutions for management and administration of these intellectual property rights. They are: the Kenya Industrial Property Institute (KIPI), Anti-Counterfeit Authority (ACA), Kenya Copyright Board (KECOBO), and Kenya Plant Health Inspectorate Services (KEPHIS).
Even though IPR has had a long history in Kenya, with the first statute being traced to the colonial period, awareness of IPR in Kenya is limited (Misati, 2008; and Ogada et al., 2004). If awareness is limited, the laws become ineffective. Kenya has implemented various policies and incentives through its institutions aimed at fostering growth in the private sector, with the overarching goal of achieving economic development and alleviating poverty. However, these policies frequently overlook the significance of knowledge infrastructure in fostering innovation, enhancing enterprise competitiveness, and supporting the overall expansion of the private sector.
2.2 GLOBAL AND AFRICAN LEGISLATION ENABLING IP COMMERCIALIZATION Patent Cooperation Treaty (PCT)As a member of the Patent Cooperation Treaty (PCT), Kenya benefits from an international framework that streamlines the patent application process. By allowing applicants to file a single application that designates multiple contracting states, the PCT simplifies the pathway to securing patent rights in numerous jurisdictions.
Kenyan inventors can file their applications through ARIPO or directly at KIPI, taking advantage of the PCT system. This system fosters innovation by providing a cost-effective and efficient means for securing patent rights internationally. Moreover, the PCT’s fee reduction for Kenyan nationals is particularly beneficial for local innovators and SMEs, enabling them to access global markets with reduced financial burdens.
The Madrid ProtocolKenya’s accession to the Madrid Agreement and the Madrid Protocol on June 26, 1998, marks its commitment to international standards in trademark protection. This protocol facilitates the international registration of trademarks, allowing Kenyan businesses to seek protection in multiple countries through a single application.
The implementation of this protocol in Kenya has encouraged local enterprises to expand their markets internationally, fostering global competitiveness. KIPI processes applications under this framework, ensuring compliance with both national and international trademark laws. Additionally, the ability of trademark owners to prevent the registration of similar marks by other parties enhances legal certainty for businesses and strengthens brand protection.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)The TRIPS Agreement, an essential component of the World Trade Organization (WTO) framework, establishes crucial standards for the protection of intellectual property rights globally, including in Kenya. TRIPS covers a wide range of IP forms, including copyrights, trademarks, patents, and geographical indications.
Kenya’s proactive legislative approach to align with TRIPS has resulted in the establishment of a more robust IP framework, which not only protects local innovations but also encourages foreign investment. Compliance with TRIPS standards has facilitated Kenya’s participation in global trade, enhancing its competitiveness in the international market.
Furthermore, TRIPS includes provisions for the protection of traditional knowledge and biodiversity, areas of particular significance for Kenya given its rich cultural heritage and biodiversity.
African Regional Intellectual Property Organization (ARIPO)The African Regional Intellectual Property Organization (ARIPO) is an inter-governmental organization that facilitates cooperation among its Member States on intellectual property matters, established by the Lusaka Agreement on 9 December 1976.8 Membership to ARIPO is available to all Member States of the African Union (AU), and Kenya, as a member, plays an active role in its initiatives.
ARIPO aims to harmonize IP laws across member states, which facilitates easier registration and protection of intellectual property rights regionally. Through its protocols, including the Harare Protocol, ARIPO provides a framework for patents, trademarks, and industrial designs. In Kenya, the Kenya Industrial Property Institute (KIPI) serves as a receiving office for regional applications, ensuring that national applicants can efficiently access regional protection. The patents granted by ARIPO in Kenya are equivalent in effect to those granted under the Industrial Property Act unless stated otherwise by the Managing Director of KIPI.
ARIPO also promotes awareness and education about IP rights among stakeholders in member countries, enhancing innovation and creativity.
2.3 UNIVERSITIES AND RESEARCH AND DEVELOPMENT (R&D) INSTITUTIONSUniversities and research and development (R&D) organizations play a crucial role in the national innovation systems of countries, as they are recognized as primary sources and consumers of intellectual property (IP). The economic justification for university patenting is to facilitate the exploitation of scientific discoveries by industry through the provision of proprietary rights over inventions (Montobbio,20099). These institutions are tasked with enhancing capacity and generating new knowledge through research and the transfer of that knowledge. R&D significantly contributes to innovation, which is often safeguarded through patents.
In Kenya, the importance of R&D in driving economic growth has been acknowledged, leading to the establishment of frameworks aimed at its enhancement. This includes the formation of the National Council for Science and Technology (NCST) to govern scientific, research, and technological matters, alongside the implementation of a Science, Technology, and Innovation (STI) policy designed to foster efficiency, productivity, competitiveness, and an innovation fund to promote developmental innovation.
However, many Kenyan universities, similar to those in other developing nations, face challenges such as limited research funding—primarily sourced from abroad—high enrollment rates without specialization, inadequate research facilities, weak university-industry collaborations, insufficient remuneration for researchers leading to brain drain, and minimal support from industry and multinational corporations for their research initiatives. The application of research findings is often lacking, treating research primarily as an academic exercise, with researchers lacking incentives to pursue investigative work.
Numerous public research institutions, such as Kenya Industrial Research and Development Institute (KIRDI), Kenya Medical Research Institute (KEMRI), Kenya Agriculture Reforms & Innovation (KARI) and Kenya Institute of Public Policy Research & Analysis (KIPPRA) are engaged in R&D in their respective sectors. Many of these institutions struggle with low staffing levels, inadequate funding, and insufficient research facilities. There is a notable disconnect between these institutions and their potential users—such as industries, farmers, and businesses—resulting in a failure to translate research outcomes into practical solutions (Kahiti, undated).
Conversely, the effectiveness of R&D is contingent upon its contribution to economic development, industrialization, job creation, and poverty alleviation. It is imperative for these institutions to leverage R&D findings to foster economic growth. Evidence suggests that a significant portion of scientific and technological research conducted in public institutions and universities remains underutilized, often regarded merely as academic accomplishments. Research initiatives are frequently disconnected from commercial applications (Moturi and Ogada, 2006). Enhancing technology transfer from universities to industry could be achieved by prioritizing the patenting and licensing of research outcomes. Unfortunately, the rate of patent applications from these knowledge-generating institutions is alarmingly low. Compared to universities in developed countries and newly industrialized countries (NICs), Kenya produces very few patents from its universities. This presents a significant opportunity for Kenya to leverage for economic advancement.
2.4 OVERVIEW OF THE PATENTING PROCESS IN KENYAPatents can be described as limited rights conferred on an inventor upon claims of having created a new technological invention. Such an invention must be an entirely new contribution to human technological knowledge. Before the enactment of the Industrial Property Act Cap. 509 in 1989, patents and designs that were granted in England were locally registered without going through the examination process. The enactment of the Industrial Property Act in 1989 gave birth to the Kenya Industrial Property Office (KIPO), which was given the mandate to examine, grant and register patents, utility models and industrial designs.10
Kenya has since embraced the patent system and the cycle of creation theory. The patenting landscape in Kenya has evolved substantially since the enactment of the Industrial Property Act of 2001, which laid the groundwork for intellectual property (IP) protection particularly patents and utility models in the country. Currently, the patenting process in Kenya is regulated by specific legal requirements and procedures established by the Kenya Industrial Property Institute (KIPI). This framework aims to protect inventors’ rights and encourage innovation. Below is a structured outline detailing the key steps involved in obtaining a patent in Kenya.
Key Requirements for Patenting1. Novelty: The invention must be new, meaning it has not been disclosed to the public in any form (including oral presentations or prior publications) before the filing of the application.
2. Inventive Step: The invention must demonstrate a significant improvement or development that is not obvious to someone skilled in the relevant field. This often involves showcasing how the invention differs from existing solutions.
3. Industrial Application: The invention must have practical utility, meaning it can be manufactured or used in any kind of industry or agriculture.
It is of importance that the patent application must provide sufficient information so that someone skilled in the art can replicate the invention without undue experimentation.
However, one major concern of this process is with regards to the waiting time. The process can take anywhere from 2 to 5 years, depending on the complexity of the invention and the backlog at KIPI thereby exposing an IP holder to potential infringements.
2.5 PATENT ADMINISTRATION AND ENFORCEMENT TO ENHANCE COMMERCIALITYThe significance of patenting in Kenya is evident in several government development strategies and the introduction of a new patent law under the Industrial Property Act of 2001. This legislation was designed to leverage Kenya’s patent policy to address national developmental objectives. However, an examination of patent statistics indicates that there has been no notable increase in the number of patent applications and grants since the law’s enactment. Therefore, it is essential to investigate the reasons behind the lack of growth in patenting activity in Kenya.
To correctly understand and interpret the potential role that patents play in fostering technology commercialization in Kenya and developing countries generally, it is necessary to look at the prevailing research capabilities and national innovation environments at large. Technological commercialization (and more broadly technology transfer) from public research and the channels through which it develops depend on several factors (OECD, 200711; World Bank, 201012), which are briefly summarized as follows (i) research capabilities and relevance, and human capital; (ii) the legal and regulatory framework; (iii) the institutional setting of research institutions (structure and governance); iv) access to finance and intermediary structures, for example technology transfer intermediaries; and (v) firms’ absorption capacity.
Despite the recognition and acknowledgement of the importance of IPR and patents in the government development agenda, statistics on registered patents in Kenya indicate a very low patent application compared to that of developed and newly industrialized countries (WIPO, 2008).13
The patent application and registration statistics in Kenya for the period years 2010 to 2019 provided Kenya Industrial Property Institute (KIPI) indicate that the volumes of registration of patents are still low in Kenya (See figure 3).
Source: KIPI 2021
Furthermore, despite growing awareness about patents, Kenya has not experienced growth in patenting contrary to the global trend. This negates the acknowledged importance of IPR/patents in spurring innovation and economic development. Low patenting and IPR is a challenge to the economic development and achievement of Vision 2030.
2.6 INTERNATIONAL AND REGIONAL PATENTSObtaining a Kenyan patent does not protect the invention in another country, hence the need for international applications. Apart from patent applications made to the national patent office (KIPI), an inventor can make application to other international patent offices. Such foreign patent applications are however made through the national office at KIPI. These can be made through two offices:
i. Patent Co-operation Treaty (PCT) administered by the World Intellectual Property Organization (WIPO) in Geneva, Switzerland covering over 100 countries. A single application is sufficient to cover those countries, as opposed to making many separate applications to the different countries.
ii. African Regional Industrial Property Organization (ARIPO) in Harare, Zimbabwe. This covers 14 African countries. The applications are filed through the national office KIPI. (KIPPRA 2012)14
Generally, Kenya’s engagement with regional and international IP frameworks highlights its commitment to fostering innovation and protecting intellectual property rights. By participating in organizations such as ARIPO and the OAPI, and adhering to treaties like PCT and TRIPS, Kenya is working towards a more integrated and robust intellectual property system. These efforts not only enhance local enterprise competitiveness but also facilitate Kenya’s integration into the global economy, ultimately contributing to sustainable economic growth and poverty alleviation. The ongoing development of Kenya’s IP policies and infrastructure is crucial in creating an environment conducive to innovation and creativity, benefiting both local and international stakeholders.
Innovation is often hailed as a key driver of economic growth and development, particularly in emerging economies like Kenya. For countries that are striving to diversify their economies and build competitive industries, fostering an environment that encourages innovation is crucial. One of the most effective mechanisms to incentivize innovation is the patent system, which grants exclusive rights to inventors for their creations. This chapter explores how patents play a significant role in enhancing innovation and economic development in Kenya.
3.1 UNDERSTANDING PATENTS AND THEIR ROLE IN INNOVATIONAs earlier indicated, a patent is a form of intellectual property (IP) that provides the patent holder with the exclusive right to make, use, sell, or license an invention for a certain period (typically 20 years from the filing date). The purpose of patents is to incentivize innovation by offering inventors a temporary monopoly on their creations, ensuring that they can recoup the costs of research and development (R&D) and generate profits.
In the broader sense, patents serve multiple roles in the innovation ecosystem:
1. Incentivizing Creativity: By offering a legal framework to protect inventors, patents encourage individuals and companies to invest time and resources into creating new products and technologies.
2. Facilitating Knowledge Sharing: While patents grant exclusive rights, they also require inventors to disclose detailed technical information about their inventions. This disclosure enriches the global knowledge pool, enabling others to build on existing innovations.
3. Stimulating Investment: Patents can act as valuable assets that attract investment from venture capitalists, investors, and corporations interested in commercializing new technologies.
4. Fostering Economic Growth: Innovation, spurred by patent protection, drives productivity, enhances competitiveness, and can lead to the development of new industries, which contribute to job creation and overall economic development.
Over the years, Kenya has made significant strides in developing its patent infrastructure and fostering innovation. The establishment of patent offices, the adoption of international standards for IP protection, and the growing awareness of IP among the business and academic communities are all positive signs.15 However, the patent system’s effectiveness in enhancing innovation and economic development in Kenya depends on several factors, including the broader innovation ecosystem, the level of IP awareness, and the challenges that inventors face in utilizing the patent system.16
3.2 PATENTING STATUS BY SECTOR IN KENYAIt has been observed through a survey conducted by KIPI that IP rights have granted in various sectors of the economy. Researched data revealed that combined, the main three sectors of manufacturing, agribusiness and education had a total of 75 innovations developed, translating to 58 percent of all the innovations disclosed by the respondents in the study. 8 percent of the respondents were not clear on innovations sector application, an indication of multiple use. Financial intermediation services, water supply and sewerage, and public administration and defense sectors had the least number of innovations. While the number of innovations in manufacturing and related sectors may not be large enough, it can be observed that these are gathering traction.17
Source: KIPI 2022
Creation of IPs however need to be encouraged in the service sector in general towards propelling a knowledge economy, as envisaged by Vision 2030. The low commercialization uptake observed in the ICT sector may not be a representation of the current innovation activity in the sector in the country. It actually indicates that the law as currently is does not enhance patenting, yet, some soft ICT components are conventionally patentable. This creates a need for reviewing the Kenyan law.
3.3 THE ROLE OF PATENTS IN ENHANCING INNOVATION IN KENYA a. Supporting Local Innovations and SMEsPatents can play a crucial role in empowering small and medium-sized enterprises (SMEs) and local innovators. In Kenya, many inventions are focused on solving practical problems related to local conditions, such as affordable medical devices, agricultural tools, and renewable energy solutions. For example, innovations in solar energy technologies and mobile-based services like M-Pesa (Kenya’s mobile money transfer system) have emerged as global benchmarks for innovation originating in Africa.18
Patents offer these innovators the legal protection they need to commercialize their ideas and attract investors. Without patent protection, small businesses in Kenya might be vulnerable to copying and exploitation by larger, more established players. Patents help level the playing field, allowing local innovators to retain control over their creations and gain a competitive advantage in both domestic and international markets.
b. Encouraging R&D and CollaborationIn Kenya, research and development (R&D) activities are growing, particularly in sectors like agriculture, health, and renewable energy. Patents can incentivize further R&D investments by guaranteeing a period of exclusive rights to the results of this research. For instance, innovations in the agricultural sector—such as new crop varieties, pest-resistant seeds, or irrigation technologies—are critical for improving food security in Kenya. Patents provide a way for researchers and companies to safeguard their innovations and ensure they are adequately rewarded for their investments in time and resources.
Moreover, patents can foster international and cross-sector collaboration. Kenyan innovators can partner with global organizations or multinational corporations to scale their technologies, knowing that their intellectual property will be protected. This collaboration can also lead to technology transfer, where foreign companies share their expertise with local partners in exchange for patent rights or licensing deals.19
c. Building a Knowledge EconomyPatents play a pivotal role in the development of a knowledge-based economy, where intellectual property and innovation are key drivers of growth. As Kenya transitions from being primarily an agrarian economy to one that is more industrialized and technology-driven, the role of patents in supporting this transition becomes even more critical.
By protecting new technologies and business models, patents can encourage the growth of high-tech industries in Kenya. For instance, innovations in biotechnology, pharmaceuticals, and information technology (IT) can position Kenya as a regional leader in these sectors. Moreover, as local universities and research institutions become more engaged in applied research, patents can act as a reward for their discoveries, incentivizing further exploration and commercialization of research outputs.
3.4 PATENTS AND ECONOMIC DEVELOPMENT IN KENYAWhile patents are an essential tool for fostering innovation, their role in economic development is nuanced. The impact of patents on economic growth in Kenya depends on how effectively the patent system is implemented and how well local businesses and entrepreneurs utilize this tool. Some of the positive effect that Patenting has on economic development are as follows:
i. Attracting Foreign InvestmentA well-functioning patent system can attract foreign direct investment (FDI) by providing investors with the assurance that their intellectual property will be protected. Multinational companies are more likely to invest in Kenya if they feel their innovations and technologies will be safeguarded. This could lead to the establishment of new industries, the creation of high-value jobs, and the transfer of technology to local enterprises.
ii. Creating High-Value JobsThe patenting process and the commercialization of patented technologies often lead to the creation of new industries and, by extension, high-value jobs. In Kenya, sectors such as tech startups, biotech, and renewable energy have great potential for job creation. By incentivizing innovation, patents can support the growth of these industries, leading to the development of a skilled workforce and the attraction of both local and international talent.
iii. Boosting Export PotentialPatents can also enhance Kenya’s export potential. With patented technologies, Kenyan companies are better positioned to enter international markets. For example, innovations in mobile technology and agricultural solutions have already found markets outside Kenya, thanks in part to the protection offered by patents. This internationalization of Kenyan innovations can help diversify the country’s export base, reduce dependency on traditional sectors like agriculture, and promote economic growth.
3.5 GLOBAL PATENTING AND BEST PRACTICES FROM OTHER COUNTRIESPatents are a critical component of economic growth in both developed and developing nations. However, the vast majority of global patents are held by developed countries, which account for 97% of all patents and have filed over 95% of patent applications in developing countries (Organization for Economic Co-operation and Development [OECD], 2008). Patent activity is highly concentrated in a select group of countries, including the United States, Japan, Germany, South Korea, China, and the United Kingdom.
Over the past two decades, patent offices worldwide have experienced a significant rise in patent applications, with technological advancements—particularly in Information and Communication Technology (ICT) and biotechnology—contributing substantially to this increase. From the mid-1990s to 2005, ICT-related patents grew at an average annual rate of 4.7%, outpacing the overall growth rate of patents during the same period (OECD, 2008). Applications filed with three major patent offices—the European Patent Office (EPO), the Japan Patent Office (JPO), and the United States Patent and Trademark Office (USPTO)—rose by approximately 40% between 1992 and 2002 (OECD, 2004). The most notable increases were observed in Asian countries, particularly China and India, where patent application growth averaged 33% and 26%, respectively (OECD, 2008).
The growing use of patents to safeguard innovations by businesses and public research institutions is closely tied to recent shifts in innovation practices, economic trends, and changes to patent systems. The surge in patent filings can also be attributed to factors such as rising investment in research and development (R&D), reforms in patent laws, significant reductions in patent fees, and the broadening of patentable subject matter (Kortum & Lerner, 1998).
Between 2003 and 2005, universities were responsible for filing 45% of all international patent applications. The proportion of patents owned by academic institutions has seen substantial growth since the mid-1990s, particularly in countries like Japan, the United States, France, Spain, and Italy. During this period, the government sector accounted for less than 2% of Patent Cooperation Treaty (PCT) filings, while nearly 80% of patents were owned by the private sector (OECD, 2008).
The Global Competitiveness Report highlights a significant correlation between a country’s Global Competitiveness Index (GCI), its GDP, and the number of utility patents it holds. Nations that perform well in terms of global competitiveness tend to also excel in areas such as utility patents, GDP, and research and development (R&D) (Economic World Report).
BEST PRACTICES FROM DEVELOPED COUNTRIES 1. JapanJapan is recognized as one of the leading nations in terms of patent applications, and it has effectively leveraged its patent system as a strategic tool for national development. This system has facilitated the creation of innovative technologies and the transfer of research outcomes to industrial applications (Kondo, 2004). The patent law in Japan is specifically designed to support the growth of industry, with the broader goal of fostering economic development, rather than serving as an end in itself (Kumar, 2009). Both Japanese policymakers and industrial leaders have acknowledged the growing significance of the patent system in an economy where investments in intangible assets have become increasingly important. Furthermore, there is a widespread belief that stronger protection of intellectual property rights (IPR) is essential for driving innovation and patenting activity.
Special Features of the Japanese Patent System•Patent Prosecution Highway (PPH): Japan participates in the Patent Prosecution Highway (PPH) program, which allows applicants to fasttrack patent applications that have already been examined by other participating patent offices. This has helped to increase the number of filings from both domestic and international applicants, streamlining the global patenting process.
•Computerized Procedures: The Japanese patent system utilizes advanced computerized procedures for the entire process, from filing applications to examination and public distribution of patent information. Approximately 96% of patent applications are submitted online, significantly enhancing the speed and efficiency of the patenting process.
•University-Industry Partnerships: Japan has actively promoted collaboration between universities and industries, encouraging joint knowledge creation, the transfer of technological expertise, and the development of knowledge-based start-ups (Kondo, 2004).
•Government Investment in R&D: The Japanese government has significantly increased its funding for research and development (R&D) at universities and research institutions, strengthening the nation’s innovation ecosystem.
•R&D Tax Credits: To further stimulate private sector investment in research and development, the Japanese government offers research and development tax credits, incentivizing innovation within the private industry.
•Efficient Patent Examination Process: Japan has a highly efficient patent examination system, with well-trained examiners and clear procedural guidelines that help expedite the patent review process. This ensures that applicants receive quicker responses, fostering greater confidence in the system and encouraging more patent filings.
•Patent Information Infrastructure: Japan has a comprehensive and accessible patent information infrastructure, making it easy for inventors, businesses, and researchers to access detailed patent data. The Japan Patent Office (JPO) provides extensive databases and online tools, which not only support patent searches but also enable the public and businesses to track existing patents, facilitating innovation and encouraging more patent filings.
•Patent Support for Startups and SMEs: Japan has introduced various programs specifically designed to help small and medium-sized enterprises (SMEs) and startups navigate the patenting process. These include financial support for filing fees, simplified patent procedures for smaller entities, and advisory services to help startups protect their innovations.
•Public Awareness Campaigns and Education: The JPO conducts outreach and educational programs aimed at raising awareness about intellectual property (IP) rights and the benefits of patent protection. By educating the public, especially researchers, entrepreneurs, and small businesses, Japan promotes a culture of innovation and encourages the filing of patents.
•Patent-Led Innovation Ecosystem: Japan has developed an innovation ecosystem where patents play a central role in commercializing technological advancements. In particular, the Japanese government supports industries that rely heavily on intellectual property, such as automotive, electronics, and robotics. This alignment of patents with industrial strategies encourages more patent filings from both large corporations and emerging tech firms.
•Strong Enforcement of IP Rights: Japan is known for its strong enforcement of intellectual property rights, providing a high level of protection for patent holders. This reduces the risk of patent infringement and encourages companies to file patents, knowing their intellectual property will be effectively safeguarded.
•Streamlined Post-Filing Procedures: The Japanese patent system offers simplified post-filing procedures, such as accelerated examination requests for certain applications, which can further expedite the process. This ability to fast-track applications increases the overall throughput of the patent office and encourages applicants to file patents more regularly.
These measures, along with Japan’s robust infrastructure, government support, and strategic focus on intellectual property, have collectively contributed to its ability to record consistently high numbers of patent applications annually. The combination of a supportive environment for innovation, efficient systems, and strong legal protections creates an attractive landscape for patent applicants in Japan.
2. Special Features and Measures of the U.S. Patent System•Comprehensive Patent Examination Process: The U.S. Patent and Trademark Office (USPTO) conducts a thorough examination process for patent applications. While this can lead to longer processing times compared to some other countries, it ensures the quality of patents granted. Additionally, the USPTO has streamlined procedures for handling complex and high-volume fields like biotechnology and software.20
•Track One Prioritized Examination: This program allows applicants to expedite the examination of their patent applications in exchange for an additional fee, offering faster grant times for those in urgent need of protection.21
•Patent Prosecution Highway (PPH): Similar to Japan, the United States participates in the Patent Prosecution Highway (PPH), which allows applicants to fast-track their applications based on positive examination results from another participating patent office (e.g., the Japanese Patent Office or the European Patent Office). This feature significantly accelerates the process for applicants who seek international protection and encourages global patent filings.
•Support for Startups and SMEs: The USPTO has introduced several initiatives to support small businesses, startups, and independent inventors. These include:
i. Reduced Filing Fees: The USPTO offers discounted fees for small entities and micro-entities, making it more affordable for smaller applicants to file patents.
ii. Pro Bono Programs: The USPTO operates pro bono programs that connect inventors with free legal counsel, helping them navigate the patent application process.22
iii. Patent Assistance Center: The USPTO provides resources to assist small businesses and entrepreneurs with understanding and utilizing the patent system effectively.
•Comprehensive Patent Information Infrastructure: The USPTO has created an extensive online patent database and digital tools that allow inventors, businesses, and researchers to easily search existing patents, track new filings, and analyze trends in innovation. This access to patent data fosters greater transparency and stimulates further innovation, encouraging more applicants to file patents.23
•Strong Enforcement and Legal Protections: The U.S. is known for its strong enforcement of intellectual property (IP) rights, which ensures that patent holders have their rights respected and protected. This robust enforcement provides patent holders with confidence that their intellectual property will be safeguarded against infringement, further incentivizing companies and individuals to file patents.
•Research and Development Incentives: The U.S. government has implemented various measures to encourage research and development (R&D), which directly impacts patent filings:
i. R&D Tax Credits: U.S. companies that invest in research and development are eligible for significant tax incentives, motivating them to innovate and patent new technologies.
ii. Public Funding for Innovation: Through agencies like the National Institutes of Health (NIH), the National Science Foundation (NSF), and the Department of Energy (DOE), the U.S. government funds a wide range of scientific and technological research, which often results in numerous patent applications by public research institutions.
•Strong Innovation Ecosystem: The U.S. has a well-developed innovation ecosystem with a vibrant mix of universities, research institutions, and private-sector companies that contribute to high patent activity. Leading companies, particularly in sectors like pharmaceuticals, software, and technology, file a large number of patents annually to protect their innovations. Major innovation hubs such as Silicon Valley, Boston, and Research Triangle Park also serve as hotspots for patent filings, further driving the high volume of patent applications.
•Patent Trial and Appeal Board (PTAB): The Patent Trial and Appeal Board (PTAB), created as part of the America Invents Act (AIA) of 2011, allows for faster and more cost-effective resolution of patent disputes. The PTAB has contributed to greater confidence in the patent system by providing an alternative to lengthy and expensive court litigation, which in turn encourages more filings.
•Specialized Patent Court (Federal Circuit): The U.S. Court of Appeals for the Federal Circuit is specialized in handling patent cases. This court has helped create a more predictable and consistent legal framework for patent disputes, increasing the confidence of patent holders and encouraging more filings.24
•Incentives for Foreign Applicants: The United States has established an attractive environment for foreign applicants to file patents. Foreign companies, especially those in sectors such as technology, pharmaceuticals, and manufacturing, frequently file patents in the U.S. due to the country’s large market, strong IP protections, and economic incentives.
The U.S. patent system’s combination of strong enforcement, financial incentives for R&D, an efficient and accessible filing system, and numerous measures to support innovation, particularly for small businesses and startups, all contribute to its ability to record high numbers of patent applications each year. Additionally, the U.S. government’s focus on fostering an innovationfriendly environment, along with its active participation in international patent systems, ensures that the U.S. remains a leader in global patent filings.
3. Singapore’s Intellectual Property SystemThe Intellectual Property Office of Singapore (IPOS) has established a reputation for efficiently issuing high-quality patents within a timely framework (International Intellectual Property Institute [IIPI], 2007). Intellectual property (IP) protection and enforcement in Singapore are effectively managed through modern administrative processes and rigorous enforcement mechanisms.
In its efforts to position Singapore as a leading IP hub with a generation well-versed in intellectual property matters, a variety of programs have been introduced for diverse target groups, including the general public, schools, businesses, and IP professionals. A key initiative, the Honour IP (HIP) Alliance, was launched in 2002 as a collaborative effort between the public and private sectors to encourage public respect for IP and combat piracy. This initiative invites the public to participate by pledging to honor intellectual property rights and to become active “HIP friends.”
Recognizing that fostering respect for IP is most effective when instilled from a young age, IPOS has developed a targeted online IP resource platform. This site features interactive and engaging materials such as e-learning modules, IP-related comics, and educational kits designed for both schools and the broader public. These resources are ideal for self-guided learning in educational settings or at home for individuals interested in expanding their knowledge of IP.
Further advancing IP education, Singapore has established the IP Education and Resource Centre (IPERC), a dedicated unit providing informative resources and training programs. IPERC’s mission is to equip both individuals and organizations with the knowledge and tools necessary for effective IP application.
Emphasizing the role of technology in facilitating IP management, IPOS has developed online tools such as ePatents, which streamline patent searches and filing processes, offering applicants enhanced convenience. Additionally, tools like the SCOPE IP™ diagnostic program—designed to guide users in the creation, ownership, protection, and exploitation of IP—support more effective IP management (IPOS).
From the foregoing, it is evident that patents play a crucial role in enhancing innovation and driving economic development in Kenya and also globally. By protecting intellectual property, patents incentivize local inventors and SMEs, foster collaboration, and contribute to the growth of high-tech industries. However, the effectiveness of the patent system in Kenya hinges on addressing challenges such as lack of awareness, high registration costs, weak enforcement, and limited access to global patent networks. With the right policy reforms and investments in education, infrastructure, and enforcement mechanisms, patents could play a transformative role in propelling Kenya’s innovation-driven economic development in the coming years.
Intellectual property (IP) commercialization is the process of bringing innovations, inventions, and creative works to the market, transforming them into products or services that generate economic value. This chapter explores the different methods of IP commercialization, delves into the historical context of IP development, and discusses the importance of effective commercialization strategies for fostering innovation and driving economic growth. It also examines successful practices in developed countries, providing detailed examples that illustrate effective IP commercialization.
4.1 THE COMMERCIALIZATION PROCESS CYCLECommercialization is a process that takes long to achieve often requiring investment before realizing returns. Intensive global competition and fast technological development (Santoro & Gopalakrishnan, 2000) have created new challenges for organizations and they are often faced with a lack of resources and time to keep a leading edge (Sherwood & Covin, 2008). This compels them to go beyond their boundaries and seek external sources of knowledge (Arvanitis & Woerter, 2009). This new technological setting has given rise to new linkages between industry and public organizations, such as research institutions including universities (Sherwood & Covin, 2008; Lai, 2011). Universities have become aware of the commercial value of their research and they are now focused on the ‘capitalization of knowledge’ (Etzkowitz, 2003).
Likewise, industry has recognized the positive impact of knowledge produced in universities on their innovation and economic performance (Arvanitis & Woerter, 2009). The initial stage in the pathway of commercialization is research which is conducted in the institution (together with its collaborators) eventually leading to a product, a service or a technology. Often the intention of the research may or may not be to commercialize the research outputs (USAID, 2017). This hugely depends on the scientist, donor or even the research institution. Between the first and second stage is the proof-of-concept stage where a product is designed, and a prototype is made. Depending on the nature of the research, this may also take the form of field testing (also known as pilot trials).
The initial investment is normally filing for intellectual property protection (Cohen et al., 1998). This is followed by expenses in licensing and marketing of the inventions while considering the fact that not all licenses generate revenue through royalties. Thus, IP protection does not necessarily lead to a business breakthrough in the absence of a well thought commercialization strategy (Yakuub et al., 2011) although an intellectual property policy is key to successful commercialization of research outputs (Rasmussen, 2008).
The second stage is the product development process involving market research (to establish demand and supply), designing process and facilities to produce the product, building a supply chain, determining the distribution channels & logistics and fully designing and implementing a marketing strategy (USAID, 2017). The third and final stage is commercial distribution following product development to make it available in the marketplace.
In Kenya, the commercialization of IPs involves a number of pathways in making the creation a viable venture. These pathways involve, and are not limited to, conducting extensive market research, feasibility studies and prototype development. This is followed by marketing and promotion efforts in the form of demos and exhibitions, issuance of samples to customers, and advertising. Alternatively, an IP holder may choose to license or franchise the product among other commercial agreements.
Source: KIPI 2022
In Kenya, the most used methods of IP commercialization are through Licensing and Assignments. Some of the other methods through which individuals and entities in Kenya and globally can commercialize their IPRs are as follows:
I) Licensing AgreementsIn such an arrangement, the owner of IPRs (the licensor) authorizes another party (the licensee) to use the IPRs for an agreed period in exchange for monetary consideration in the form of a fee or royalty, or both. In such an arrangement, there is no transfer of ownership of the IPRs, and the licensee can only use and appropriate the IPRs in accordance with the terms of the licensing agreement in place. License agreements are more flexible as they define geographical territory, terms of use and time limitations. Licensing of IPRs is a great source of income for a company, especially those operating across multiple jurisdictions where opportunities for considerable revenue generation can be earned through IP licensing.
II) FranchisingFranchising of IPRs involves sharing out of a franchisor’s IP asset to distribute goods or services. The franchisor owns the IP rights over the various elements of the franchise and the franchisee pays a fee or royalty for the benefit of the IP. Ideal IPRs for franchising are those that are already very well-known to the public. IP rights in a franchise agreement, often relate to trademarks and trade secrets that represent the franchise ‘brand’. The use of the IP is limited to the terms of the franchise agreement. In Kenya, several fast-food chains, quick－service restaurants, hotels, fuel stations, real estate, clothing, and furniture dealerships operate under IPRs franchise arrangements/agreements.
III) Direct exploitationDirect exploitation of IP refers to using the relevant IP by the IP owner in the course of trade. It also refers to the enforcement of an intellectual property right (IPR) against instances of infringement. IPR exploitation through use ensures that there is a justifiable legal claim a proprietor of IPRs has over their asset. To be able to enforce one’s rights through infringement proceedings, an IP owner needs to ensure that all the relevant IP has been duly registered with the relevant authority.
IV) AssignmentOwners of IPRs can sell their rights in whole or in part to a new owner thus granting them the right to use and commercially exploit the IPR. Such commercial arrangements are common in Kenya, and KIPI regularly issues certificates of assignment to assignees of the relevant IPRs stipulated pursuant to the assignment agreement between the parties concerned. An assignment of IPR is the sale of the IPR or the share of the IPR. Assignments of IPRs do not have to cover all the IPRs. Given that an assignment of IPRs normally deprives the existing IP owner of any possibility of further licensing or commercially exploiting the IP owner’s IPRs, the amount charged for an assignment is usually much higher than the license fee charged for a license.
V) CollateralizationCollateralization is the process of securing a loan with the valuable IP asset being used as collateral. The borrower provides the IP asset to secure the loan and in the event of default, the lending institution can take possession of the asset to cover the debt. The Moveable Property Security Rights Act, 2017 provides for the registration of security rights in moveable properties. Prior to 2017, individuals and entities with no tangible assets had difficulty accessing credit facilities since they lacked the collateral required by financial institutions. With the enactment of the Act, it became possible to access credit by using moveable property as collateral. Thus, IPRs can function as collateral for borrowing funds from financial institutions like banks.
VI) SecuritizationThe securitisation of IPRs enables the intangible assets and their respective income, i.e., from royalties, licenses etc. to be capitalised on, to finance an entity’s activities. The process facilitates the IPRs owner to sell their asset to a Special Purpose Vehicle (SPV) which will then create a marketable security that can be sold to stakeholders in the capital market. In Kenya, SPVs are structured to allow multiple individual and institutional investors to participate in an investment venture without investing large sums of money as is the case with other fixed income investment instruments such as treasury bills and bonds.25 Thus, the IP asset acts as an asset-backed security. IP in Kenya is now recognizable as a registrable form of security or collateral, which can be used to secure financing.
VII) MerchandisingMerchandising involves creating products that utilize IP, such as characters from films or books. This can include toys, apparel, or other consumer goods. Effective merchandising can significantly enhance the commercial value of IP, particularly in entertainment and media.
VIII) Spin-offs and StartupsMany universities and research institutions create spin-off companies to commercialize their research outputs. These startups leverage the IP developed within the institution, attracting investment and fostering innovation. This approach not only brings new products to market but also stimulates economic growth and job creation.
IX) Joint ventures and CollaborationJoint ventures involve partnerships between two or more entities to develop and commercialize IP. Collaborations can pool resources, expertise, and networks, enhancing the likelihood of successful commercialization. This strategy is often used in industries such as pharmaceuticals, where extensive research and development (R&D) investments are required.
4.3 VALUATION OF IPIP valuation is increasingly becoming an important, if somewhat incidental, aspect of licensing, franchising, joint venture or strategic alliance and other forms of transactions involving innovation, creativity, IP or technology transfer in Kenya and Africa generally.26 IP assets have specific legal protection offering exclusive rights and that right can be enforced. Their value is derived from their ability to exclude competitors in their market. To quantify an IP’s value, it should generate significant economic benefit to the IP owner and, enhance related assets. The factors that influence an IP’s value include who owns the IPR, whether it generates income, how long is it valid for, what is the market for the IP and, whether a related IP asset increases/decreases its value.
The three main approaches used by WIPO in the valuation of IP are:
1. The cost approach: this involves establishing the value of an IP asset by calculating the cost of a similar one.
2. The market approach: this involves comparison with the actual price paid transfer of a similar asset in similar conditions.
3. The income approach: this involves valuing the asset based on its expected or generated income.
It should be noted that Patents can enhance the overall valuation of a company, making it more attractive for acquisition or investment. Companies with strong patent portfolios are often viewed as having significant market potential. It is important to note that there is currently no Kenyan Accounting Standard that comprehensively addresses the accounting treatment of IP in Kenya and thus an area for further exploitation.
4.4 EFFECTS OF IP COMMERCIALIZATIONInnovators and inventors bring variant benefits to the economy. As an economic development force, ownership of IPs ensures that the monetary benefits accrued from the sale of products benefits the innovators. Over a long period of time large firms that are well financed by investors have had a competitive edge over micro small and medium enterprises (MSMEs) firms and solo inventors and innovators. However, MSMEs have become more engaged in the commercialization and development of innovations. They play a key role when it comes to capital formation and accumulation from innovations and inventions.27
These benefits are in turn used in the acquisition of augmenting technology, creation of wealth and employment opportunities other than contributing to the reduction of production cost. The commercialization of intellectual property plays a vital role in several areas:
1. Economic GrowthEffective IP commercialization drives economic growth by creating new products, services, and industries. It fosters entrepreneurship, generates jobs, and enhances competitiveness. For example, in the United States, IP-intensive industries contributed $6.6 trillion to the economy in 2019, representing 38.2% of GDP.28
2. Innovation and Research DevelopmentThe promise of commercialization incentivizes research and development efforts. Inventors and researchers are more likely to invest time and resources into innovation when they have the potential to reap financial rewards through IP protection. Growth of entrepreneurship in the small and medium enterprises (SMEs) depends largely on the development of low-cost commercialization of university-led ideas.29 In Germany, for example, the “Fraunhofer Society” emphasizes applied research with a strong focus on commercialization, contributing significantly to the country’s innovation ecosystem.30
3. Knowledge TransferCommercialization facilitates the transfer of knowledge from research institutions to the marketplace. This process bridges the gap between academia and industry, ensuring that valuable research findings lead to practical applications. Programs like the UK’s “Knowledge Transfer Partnerships” exemplify successful initiatives that foster collaboration between universities and businesses.31
4. Global CompetitivenessIn a globalized economy, effective IP commercialization can enhance a nation’s competitiveness. Countries that prioritize innovation and protect IP rights can attract foreign investment and foster a vibrant entrepreneurial ecosystem. For instance, Singapore’s strong IP regime has positioned it as a leading global innovation hub, attracting multinational corporations and startups alike (Singapore IP Office, 2020).
5. Cultural and Creative IndustriesIn sectors like music, art, and literature, effective commercialization of copyright can support creators and artists, ensuring they receive fair compensation for their work. This, in turn, encourages cultural diversity and creative expression. The UK’s creative industries, which contribute over £100 billion to the economy, are a testament to the successful commercialization of copyright (UK Government, 2020).
4.5 CHALLENGES TO IP COMMERCIALIZATION I. Institutional challenges impeding commercializationIt is argued within literature that when institutional issues are at play, they can influence the probability of a patent being licensed or not.32 Failure to attract investment for commercialization, associated commercialization cost and innovator conflicts among others are perceived as key institutional challenges. Additionally, lack of adequate support systems for commercialization, delay in undertaking the commercialization processes which occasioned lapse in interest, inadequate financial resources and managerial competencies matching the requirements of commercialization pose as further challenges. In Kenya, most creators have organized their businesses informally and therefore lack institutional competencies to manage the rigor of patent commercialization. Lack of linkages and cooperation among institutions, industry and government has been cited as another barrier.33
II. Environmental challenges impeding commercializationEnvironmental barriers to effective commercialization can be categorized into either technical or non-technical.34 Technical barriers include high cost of raw materials and other economic factors whereas non-technical barriers include policy and legal issues. Prime among these is the local and international economic climate which can scuttle product pitching of a given product or geographic market. Unfavorable domestic and international market, if not attractive for innovations and inventions, scaling up products will be undermined by market disruptions as a likely outcome. Further, inadequate traction of a given product in a defined market and inadequate stakeholder involvement are other additional challenges.
III. Policy issues that impede commercializationAccording to research conducted by KIPI, legal regimes that do not foster accessibility of credit for commercialization was perceived as a leading policy issue that does not incentivize commercialization. Unfavorable legal and regulatory regimes that lack clarity in support of product commercialization is an equally pressing challenge. Additionally, inadequate technology transfer techniques and policies that lack robustness when it comes to product protection are critical challenges. This is highly attributable to associated costs that come with patenting and the procedure that is involved.
IV. Systemic barriers in enforcing IPRRegistration of IPRs and enforcing those rights in instances of violation or infringement are costly processes. This limits the commercialization and prosecution of IPRs to mostly blue-chip companies with the ability to pursue costly or lengthy litigation in certain instances.
V. Lack of valuation professionalsKenya lacks adequate IPRs valuation professionals as well as a framework that governs the valuation of IP assets. For many entities, this means that lenders undertake the valuation and may not apportion a fair and accurate amount for the assets when an IPRs holder wishes to exploit the commercial value of their IPRs.
VI. Competition issues affecting the commercialization of intellectual property rightsIPRs provide the owner with exclusive ownership of the protected right and the owner controls access and use of the IPRs. However, in Kenya, the Competition Act (No. 12 of 2010) prohibits an owner of IPRs from using the IPRs in a manner that would prevent or distort competition in the market in which it operates. The Consolidated Guidelines on the Substantive Assessment of Restrictive Trade Practices under the Competition Act states that agreements on IPRs that directly or indirectly fix purchase or selling prices, allocate markets or indicate the way IPRs are used by the concerned parties; are expressly prohibited under the Competition Act.35
In conclusion, Intellectual property commercialization is a multifaceted process that encompasses various strategies for bringing innovations to market. Its historical development reflects the growing recognition of the need to protect creators and incentivize innovation. The importance of effective IP commercialization cannot be overstated; it drives economic growth, encourages research and development, facilitates knowledge transfer, and enhances global competitiveness. Successful practices in developed countries provide valuable insights into effective commercialization strategies, demonstrating how robust IP systems can support innovation and economic prosperity. As the landscape of IP continues to evolve, stakeholders must adapt their commercialization strategies to maximize the value of their intellectual property in an increasingly interconnected world.
The main objective of this paper was to analyze the status and trends in IP commercialization and Patenting in Kenya. The overarching argument was that the business practice and laws in Kenya needs to focus on intellectual property valuation, securitization and taxation and other forms of commercialization to enhance product development of patent innovations. Various statutes and regulations that govern IP in Kenya lack the legal, institutional and structural mechanisms to equitably and efficiently implement the commercialization of IP and innovation.
As a common theme throughout this paper, commercialization and patents play a major role in the stimulation of inventive activity (KIPI, 2022).36 A robust patent system and appropriate enforcement are prerequisites for technology transfer and investment. The strategy of commercialization of innovations is a complex process, which consists not only in choosing one of the methods of transferring the obtained result but also in detailed planning of the process of its commercial use. The organizational, marketing, production, and financial characteristics of the implementation of an integrated strategy for the commercialization of intellectual products are interconnected.
Achieving this result is possible by making decisions regarding the expediency of securing intellectual property rights to the object under development, the timing of bringing the results of intellectual products to the market.37 Thus, the most fundamental way that patents facilitate technology transfer and investment is the creation of a safe environment in which business and further R&D may be conducted.
Many businesses in Kenya are currently operating without valid licenses. Consequently, they run their enterprise informally meaning that they can only run a small range of business support services which in turn hinders commercialization of IPs. Additionally, most innovation activities in Kenya occur in micro and small enterprises which account for about 60 percent of innovations, yet they lack organization competencies to support commercialization. Creation activities and IP acquisition are mainly carried out by businesses that are informal in nature either operating with a business name or unregistered.
Formal business arrangements are more likely to provide an internal base for deliberate business registration strategy which includes management of IP rights as opposed to informal set ups. When businesses are not registered, the plausibility to formulate feasible strategic interventions to stimulate commercialization of IPs is impeded. When using an active commercialization strategy, it is important to choose the most suitable organizational and legal form of doing business.
5.2 CHALLENGES TO PATENTING IN KENYAPatenting in Kenya encounters several substantial challenges that impede inventors and applicants from effectively securing their intellectual property rights. The key challenges are outlined as follows:
1. Institutional Capacity ConstraintsKIPI faces significant challenges related to inadequate staffing, limited funding, and a lack of specialized expertise. Limited funding for research and development restricts innovation and the capacity to patent new inventions. Additionally, there is a lack of qualified intellectual property professionals available to assist inventors with the patenting process, exacerbating the challenges faced by applicants. These constraints result in delays in processing patent applications and contribute to a backlog, undermining the efficiency of the patent system.38
2. Awareness and Education DeficitsThere exists a pervasive lack of awareness regarding patent rights. Many Kenyan entrepreneurs, especially in rural areas, lack awareness of the patenting process and the value of intellectual property protection. This lack of education limits the potential for innovation to be patented and commercialized effectively. Concurrently, many potential applicants are unfamiliar with the benefits of patenting and the application process, leading to underutilization of the system.39
3. Legal and Procedural BarriersThe cost of filing and maintaining patents can be prohibitively high, particularly for small businesses (SMEs) and individual inventors. These legal and procedural barriers deter innovation and limit participation in the patenting system.40 The financial burden associated with patenting, including application fees and legal expenses, serves as a significant deterrent for many inventors.
4. Lengthy and Complicated Patenting Process and Patent draftingThe patenting procedure is often viewed as excessively long and intricate, deterring potential applicants from pursuing patents. Many inventors find it difficult to draft patent applications due to their complexity, which can result in errors and subsequent rejections. The long processing times may discourage many from pursuing patent protection.
5. Lack of Clear Patenting Policy and coordination amongst the IP institutionsThe absence of a coherent policy governing patenting practices complicates the landscape for inventors.
6. Weak Enforcement MechanismsEven though Kenya has a patent system in place, the enforcement of patent rights remains a challenge. Counterfeit goods, piracy, and IP theft are rampant in some sectors, undermining the incentives for inventors to register their patents.
7. Limited Access to Global Patent NetworksWhile Kenya is a signatory to international patent treaties, local innovators may still struggle to navigate the complexities of international patent law. This creates challenges for Kenyan inventors trying to secure patent protection in multiple markets.
These challenges collectively contribute to the low rates of patenting observed in Kenya, leaving many potential innovations unprotected. To address these issues, targeted interventions are necessary, including streamlining the patenting process, enhancing education on intellectual property, and increasing funding for research and development initiatives.
5.3 FACTORS THAT WOULD PROMOTE PATENTING AND COMMERCIALIZATION OF IPR A) Institutional factors enabling commercialization i. Customer Value PropositionEstablishing a demand among potential users for a particular innovation is essential. This helps ensure that the expenses incurred in market research and advertising are offset by the revenues generated from product sales. Achieving this requires innovators and inventors to have a clear understanding of the product concept, provide detailed information about the product, and communicate this offering effectively to potential users. Additionally,identifying the target customers, based on factors such as region, age, is crucial. This insight plays a vital role in effectively promoting the product.
ii. Resource provision for commercializationCommercialization of inventions is a resource intensive process. It involves the identification of distribution channels, engagement with personnel and creation of partnerships with relevant firms. It also involves development of the business plan, acquisition of augmenting technology, relevant training, and allocation of necessary financial resources. Establishing clear distribution channels and partnerships are essential for commercialization of the inventions.
B) Environmental enablers to commercialization i. Legal AtmospherePatent, copyright, and trademarks not only provide legal protection to innovators, but also unlock the opportunities for cross-border licensing and spin-offs. Hence, legal assistance is a major facilitator in expanding commercialization of intellectual property. In the absence of legal rights, the commercialization process is not secure, and researchers would be less interested to commercialize their invention (Ferington, 2007).41
Government plays a pivotal role in strengthening the legal atmosphere of intellectual property commercialization. Government facilitates the transfer of innovation in a legally structured manner to industries for public use. Government is like a market maker for intellectual properties (Rasmussen, 2008). Hence, effective government support can advocate commercialization of intellectual property. Additionally, the government’s role in intellectual property commercialization depends on other factors. This role is usually positive and more dominant. There are two major issues worth discussing in this regard. Government is the key stakeholder in strengthening the relationship between university and industry (Hearn et al., 2004).42 Government helps in forming an institutional framework, establishing research culture, and creating markets for innovation in the long run (Liyanage & Gluckman, 2004).43
Therefore, government’s role in the commercialization of intellectual property is through the establishment of effective legal framework for innovative research culture, research collaboration, and property rights of researchers. Governments that have succeeded in meeting these challenging tasks see a momentum in the commercialization of intellectual property (Rasmussen, 2008).44 Finally, government assistance must not be static or standardized. Assistance from the policy level should be highly customized to the needs of commercialization and it must also be dynamic (Geuna & Muscio, 2009).45
ii. Financial access for commercializationInnovation and eventual patenting of a product involves a range of activities. The roll out of mass production requires financial resources. Monies raised enable activation of a set of activities. The monies can be used as seed money (applied to prototype development and other start up activities), support product development or to foster marketing activities.
iii. Access to support services for commercializationMarket research, experts’ advisory opinion, product promotion and design alongside provision of training and extension services to innovators are critical service for commercialization. The numbers accessing these support services however is too low to bring about significant impact in commercialization.
5.4 INNOVATION VERSUS COMMERCIALIZATIONKenya Vision 2030 captures the essence of science technology and innovation in promoting national development. Kenya also subscribes to African Union Agenda 206346 which advocates for application of at least 2 percent of GDP in research and development by governments in Africa. Though this has not been attained, in Kenya the government has made progress by creating a KES 3 billion research fund.47 This effort is complemented greatly by other actors in private and development sector. Suffice it to say, in so far as research and innovation is concerned, policy is now in tandem with action.
Investments in research and development lead to novel creations most of which are recognized as IPRs. It is a foregone conclusion that innovation national policy frameworks that recognize intellectual or industrial property rights tend to grow investments in research and development to a large extent coupled by large number of creations.48 IP protection is therefore synonymous with investment in R&D a role well-articulated by the Institute. Studies, however, have not been keen on showing the intersection between IP acquisition and product development/commercialization. Yet, according to Forbes49, out of the 2.1 million active US patents hardly 5 percent have reached the market. About 90 percent of the patents fail to be commercialized or find angel investors or licensees. These unlicensed patents include over 50,000 high-quality patented inventions belonging to universities. Whereas the validity of this data may be debatable, it goes to show the challenge surrounding commercialization of IP rights.
A study carried out by Arundel and Bordoy50 in an attempt to map patent commercialization indicators found varying but low levels of commercialization in various developed countries.
License execution seems to be the most plausible commercialization route given a success rate of between 28-61 percent. This analysis represents the intricacies in acquisition and commercialization of IP rights globally. In Kenya, an MSMEs enterprise survey carried out in 2016 found out that product innovation was apparent in small establishments engaged in manufacturing, ICT, financial and health activities at 31.6, 33.3, 44.4, and 42.5 per cent, respectively. Survey results also showed that process and marketing innovations were largely not common features among MSMEs.51
It is thus evident that innovation through patenting and commercialization are closely interconnected processes that play crucial roles in transforming inventions into marketable products and services. It is the foundational step in the commercialization process, providing the necessary legal protection that allows inventors and companies to invest, develop, and market their innovations. Effective management of patents can significantly enhance the chances of successful commercialization, driving economic growth and fostering a culture of innovation.
5.5 AFRICAN CONTINENTAL FREE TRADE AREA (AFCFTA) ON COMMERCIALIZATION OF IPRThe African Continental Free Trade Area (AfCFTA) has been widely recognized as a potential driver of enhanced economic growth and integration across the African continent.52 As part of the AfCFTA’s ongoing implementation, phase two negotiations include discussions on Protocols covering Investment, Intellectual Property Rights (IPRs), and Competition Policy. However, for the AfCFTA to function optimally and achieve its intended goals, African nations must critically assess and potentially reform their individual approaches to the protection of IPRs, the ease of doing business, and the enforcement of competition and anti-trust laws. The lack of robust legislative instruments that would enable the effective protection and commercialization of these unique IPRs is a key challenge for fostering their integration into the broader economic system.
It is hoped that, through collaboration, African Union members will establish an IP framework that is tailored to the specific economic and developmental needs of the continent.
The Protocol on Intellectual Property Rights for the African Continental Free Trade Area (AfCFTA) is a draft framework designed to establish intellectual property rules and standards that are specifically suited to Africa’s level of industrialization and aligned with the overarching goals of the AfCFTA.53 This draft Protocol provides an opportunity for African Union member states to develop an IP framework that responds to the unique needs of the continent. Key issues addressed include facilitating technology transfer within Africa’s innovation ecosystem, promoting technology diffusion, and supporting the continent’s broader economic transformation toward a knowledge-driven economy based on information sharing and innovation.54 By focusing on these areas, the Protocol aims to foster a more dynamic and sustainable economic growth model for Africa.
Kenya’s launch of the African Continental Free Trade Area (AFCFT) implementation strategy 2022-2027 seeks to deepen integration within the AFCFT, facilitating trade and investment to boost its economic growth.
This paper reviews existing literature on intellectual properly commercialization and the patenting process. The strategic management of intellectual property (IP) plays a crucial role in Kenya’s achievement of Vision 2030, which envisions a knowledge-based economy, and significantly contributes to the attainment of the Sustainable Development Goals (SDGs), especially SDG 8: Decent Work and Economic Growth. By promoting innovation and the commercialization of new products, IP can stimulate job creation and drive economic growth. Furthermore, SDG 9: Industry, Innovation, and Infrastructure can be strengthened through a robust IP system that encourages investment in research and development (R&D), thus fostering technological progress. This paper aimed to investigate the commercialization of IP and patenting in Kenya, with a focus on their current status and challenges.
Key findings include the low rate of patenting in Kenya, marked by a significantly low patent grant rate. The number of patent applications from universities is also surprisingly low, contrary to expectations, and patent applications from research institutions remain limited despite their focus on R&D. Despite these low patenting figures, many entrepreneurs possess innovations that are not protected by intellectual property rights (IPR) or patents. Several challenges were identified as key barriers to patenting in Kenya, including the lengthy and complex patenting process, difficulty in drafting patents, insufficient IP knowledge, limited R&D funding, a shortage of IP professionals, and the high costs associated with patenting.
Factors that could promote IP commercialization and patenting were grouped into institutional and environmental factors. These include increasing opportunities for patent exploitation, raising awareness about IP, boosting R&D funding for institutions, and ensuring the availability of IP professionals and services. The commercialization of IP in Kenya was also found to be extremely limited. Key obstacles cited include the lack of IP valuation experts, inadequate laws governing IP commercialization, and insufficient knowledge and funds for commercialization.
6.2 Policy RecommendationsThe first recommendation is awareness creation through IP sensitization. There is need to intensify IP awareness in the country, especially for patents. This could be achieved through:
a) Enhanced outreach efforts by KIPI to include a variety of initiatives aimed at engaging stakeholders. These activities involve organizing workshops and capacity-building programs to strengthen knowledge across all sectors, as well as utilizing exhibitions, and trade fairs to raise awareness. Publications are also leveraged to educate the public on the significance of intellectual property rights (IPR) and to address current IP issues. Additionally, media channels such as newspaper articles, TV programs, and radio discussions could be used to further disseminate information and promote awareness.
b) IP awareness can also be improved through the incorporation of IP as a mandatory subject in the education curriculum.
c) There is need for a national intellectual property day which could coincide with the world intellectual property day or the WIPO Global Awards that recognizes innovative achievements by SMEs.
Secondly, there is need to review the patenting process which is a major challenge to inventors and perceived obstacle to patenting in Kenya because it is long and tedious. The process could be made more efficient through:
a) Automation of the patenting process whereby applicants can apply for patents online and receive feedback immediately as seen in the more developed countries’ economies like Japan and USA. This will greatly improve the efficiency of the patenting system in Kenya.
b) Decentralization of the patent offices to all 47 counties to enhance accessibility to inventors in all the regions of Kenya.
c) The Government also needs to employ more IP professionals, to offer subsidized services and advice to the patent applicants to address the understaffing issue.
Thirdly, as clearly defined under the findings, innovation activities are predominant in small and medium enterprises in Kenya. To increase IP commercialization, the government needs to consider the following:
a. Set up and actualize a fund that will help inventors to develop and commercialize their innovations.
b. Create an information resource center which will help them identify possible sources of business support that they require in the course of commercializing the IP.
c. To address the IP valuation issue, there is need to build capacity in IP valuation and address the issue of IP valuation through policy and sui generis laws.
d. Deepen cooperation and coordination among Government agencies and IP institutions with complementary mandates to boost commercialization prospects.
Additionally, to enhance patenting across the country, there is need to increase R&D especially in universities, R&D institutions as well as private sector. This can be achieved through the following recommendations:
a) Increased R&D funding to universities and research institutions for research, equipments and better remuneration to the researchers.
b) Provide subsidized tax rebates on R&D expenditure to encourage more R&D.
c) Government to provide scholarships for research in key strategic areas like health and agriculture which should be translated to development.
d) Policies that promote applied research as opposed to basic research.
e) Encourage collaborative research between institutions and industry through the Technology Transfer Offices (TTOs) in universities.
With regards to enhancing legislation and the legal atmosphere on IP commercialization, there is need for:
a) Quick implementation of the national IP policy to govern IP issues of management, administration, enforcement, and ownership.
b) Review the current IP laws to accommodate current market trends, innovations in emerging technologies and valuation of IP that will enhance its commercialization.
c) Review of penalties for IP/patent infringement and put in place structures for enhanced patent enforcement.
Finally, granting of incentives is needed to create a conducive environment for innovators, an aspect that should encapsulate the financially and time constraining patent application procedure. Accessibility to financial services at affordable cost is an equally important incentive. Among others, there is need to set up innovation and incubation hubs across the counties to unlock youth’s innovation potential, which can not only bring about new products but create new avenues for wealth creation.
1 Written by Omolo Roy Otieno. Candidate for Master of Arts in Law at Kansai University Graduate School of Law and Politics
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