Preventive treatment of Malaria reduces anaemia and improves classroom attention in school children

According to a research report published in the current issue of the Lancet, preventive treatment for malaria reduces the prevalence of malaria infection and anaemia among schoolchildren, and significantly improves their classroom attention. However, in contrast to a study done in Sri Lanka, the study did not find improvement in educational achievement among the children.

The study by a team of scientists from Kenya, UK and US, and funded by Gates malaria Partnership was carried out in 30 primary schools in Western Kenya among children aged 5-8 years who were given the treatment at 4 months interval.

The report further observes that even though some children did not complete the dose of treatment because of the bitter taste of the malarial drug amodiaquine, the outcome was similar among the children who received complete and incomplete treatment.

According to the report, the findings illustrate the “possible gains of integrating malaria control into broader school health programmes” and there may need for further research to investigate any long-term educational benefits.

Mark of quality may make goods disappear from market

According to Business Daily some consumer goods not bearing the East African Standardisation mark may be removed from supermarket shelves from tomorrow. This is in line with the requirement for all locally manufactured goods to bear the quality mark as agreed by the by the EAC members states.

According to the report, Nakumatt Supermarket has issued a notice of its intention to remove all non conforming goods from its shelves as the deadline for compliance takes effect in all the EAC countries from 1st July 2008.

As previously posted here, Kenya Bureau of Standards has consistently alerted Kenyan manufacturers of the requirement for their manufactured goods to carry its standard seal indicating that their quality has been certified. However IP Kenya is sceptical of the extent to which adhering to the standard will advance the stated objective of eradicating the menace of counterfeiting and substandard products in the region.

To beat the deadline the counterfeiters may have moved ahead and put their act together to “comply” with the requirement by branding their products with the quality mark. As a recent case in Uganda demonstrates, at least some counterfeiters are ahead of the deadline and have branded their products with the diamond quality mark.

As reported here and here the case concerned importation into Uganda of counterfeits BIC pens by a Ugandan company Wenbara Trading Company Ltd. The pens were imported from China described as writing plastic materials but on verification by Ugandan Revenue Authority the cargo was found to contain pens marked as “BIC” and “made in Kenya”. The boxes containing the pens were also branded with the diamond mark of Kenya Bureau of Standards and falsely indicating that the pens were made by Haco Industries in Kenya.

Endowment fund for research and innovation

A report in the Nation reveals that the government will in the next financial year establish a Ksh 250 million endowment fund to support research and innovation. The disclosure is attributed to the Permanent Secretary in the Ministry of Higher Education Science and Technology Prof Crispus Kiamba who was opening a regional scientific workshop organized by the Kenya National Academy of Sciences. Prof Kiamba is also reported to have disclosed that a Science, Technology and Innovation policy paper will be presented to the cabinet for deliberation.

Comments
It is not clear whether this fund is the same or is a supplement to the fund outlined by the Minister for Finance during the budget speech (see earlier post here) to promote science, technology and innovation.

However it may appear that the two funds are separate components since the budget speech proposal was for Ksh. 300 million and in the current financial year whereas the latest proposal will be implemented from the next financial year.

IP Kenya can only (re)reiterate what the Minister for Finance said during the budget speech that science, technology and innovation will play an important role in driving the country’s growth through promotion of efficiency, productivity and competitiveness.

Sweet dose for malaria patients

Writing in the Daily Nation’s Horizons magazine, Gatonye Gathura reports that scientist have artificially produced artemisinin, the compound used for treatment of malaria, and within 3 years it will be possible to produce enough to treat all malaria cases in the world.

He reports that in a research funded by Gates foundation, the scientists have produced artemisinin from yeast in a process similar to that of brewing bear and the partnership with Sanofi-Aventis is gearing up for industrial production of the drug.

While this is good news for malaria patients, this new scientific development will deal a big blow to farmers in the country who have recently taken up farming the artemisinin producing herb-artemisia annua. Reportedly the farmers on average are making Ksh 20,000 annually from a ¼ acre of land from cultivating the herb which is in demand especially by Swiss pharmaceutical company Norvatis which is a major manufacturer of the malaria drug.

The process of producing artemisinin by extracting it from the dried leaves of the herb is labourious, making the cost of the drug expensive for malaria patients- especially in developing countries.It is hoped that the new method of producing artemisinin will dramaticaly bring down the price of treatment to the level of making it the cheapest anti-malarial drug.

2008 Budget: 300 million fund to promote science, technology and innovation

In his budget speech, the Minister for finance Hon. Amos Kimunya has outlined a number of proposals to promote science technology and innovation in order to enhance growth and employment in the country. To achieve the long term growth of the country he proposed several measures in key sectors of the economy. One of the 5 key measures meant to spur higher productivity and expanded employment opportunities is promotion of industrial research, technology and innovation

He reiterated that science, technology and innovation will play an important role in driving the country’s growth through promotion of efficiency, productivity and competitiveness.

To entrench a culture of science, technology and innovation, he said the government will introduce several proposals for debate in parliament including;

• A national policy for science, technology and innovation


• A bill to upgrade the National Council of Science and Technology to the National Commission of Science and Technology


• Creation of the National Science Foundation and National Innovation Agency.
  
  

He also said that the government recognizes the critical role played by SMEs as catalysts for economic transformation and industrialization. To this end the government will facilitate SMEs growth. The government will also facilitate expansion of business incubation services to support over 100 additional enterprises and creation of 100 software development enterprises.

To achieve these objectives the Minister allocated Ksh. 300 million towards innovation and piloting program covering various projects such as;

• Fish leather processing in Kisumu


• Mango processing in Malindi, Kerio Valley and Muranga


• Mini-leather processing in Garissa, Pokot, Migori and Bungoma


• Honey processing in Eldama Ravine, Kajiado and TARDA regions


• Cashew nut and palm wine processing in Kwale and Malindi


• Fruit processing in Meru, Tharka Nithi and Kendu Bay


• Rehabilitation and upgrading of technology for a leather development center in Nairobi.

Fake products flood the Kenyan Market

Daily Nation reports that the Kenyan market is flooded by fake products, and the situation is being made worse by the current economic hardship in which the purchasing power has gone down.

Some of the imported counterfeits are marked as “made in Kenya” and with fake Kenya Bureau of Standard diamond mark. The situation is worse where even anti malaria drugs have not been spared, with 1 in every 5 drugs suspected to be harmful.

The report indicates whereas most of the products are imported the trade is expanding locally especially in Nairobi where fake cooking oil, maize flour and alcoholic drinks are manufactured and the goods are then sold in neighbouring countries.

The practice is affecting not only the economy but many local manufacturing companies who have to endure the unfair business practices. Haco Industries, a local manufacturing company is reported to be losing Ksh 100 Million every year as a result of counterfeiting of one of its brands, BIC biro pens. Sometimes the counterfeit is so similar to the genuine product that even the brand owners may not tell the difference.

It is reported that Kenya Bureau of standards has directed that from July this year all manufactured goods in Kenya will be required to carry standard seals indicating that their quality has been certified. It is debatable whether this new directive will help. The mark can easily be applied on counterfeit products as a recent case in Uganda demonstrates.

The case concerned importation into Uganda of counterfeits BIC pens by a Ugandan company Wenbara Trading Company Ltd. The pens were imported from China described as writing plastic materials. However on verification by Ugandan Revenue Authority the cargo was found to contain pens marked as “BIC” and “made in Kenya”.

Tellingly the 852 boxes containing the pens had a diamond quality mark of Kenya Bureau of Standards. And even though the cargo was imported from china, the boxes containing the pens also indicated that they were made by Haco Industries in Kenya.

To address the counterfeit menace, the anti counterfeit bill (reported here) which proposes establishment of an anti counterfeit agency will be tabled in parliament this year. It will be recalled that this bill has been pending for a number of years now.

However the war on counterfeit activities will not be won by creating layers and layers of laws. In addition to enacting new laws and regulations it also important that they be enforced.

More on anti counterfeiting measures in neighbouring Tanzania here and here

Countefeit horror here.

Puzzling ruling in Sanitam saga

IP Kenya has come across an interesting patent infringement ruling in 2001 by the late Justice Peter John Smithson Hewett. Once again the plaintiff is Sanitam, seeking an injunction against a company by the name ANIPEST Kenya Limited for infringement of the now famous ARIPO patent No AP 773 relating to a foot operated sanitary/litter bin. (Earlier posts on the Sanitam bin can be found here and here.)

Even though the Court of Appeal, in Sanitam Services (E.A.) Ltd v Rentokil Kenya Ltd & another [2006] eKLR (posted here), acknowledged the complexity of adjudicating intellectual Property disputes, the present case takes the meaning of the word "complex" a notch higher. Apart from his tirade generally directed at what he perceived to be shortcomings of the repealed Industrial Property Act, one cannot fail to observe how his Honour meticulously scrutinizes the abstract and decisively concludes that the invention is not novel.

The case is reproduced here in full.

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 1898 OF 2000
SANITAM SERVICES (E.A) LIMITED………………….PLAINTIFF
VERSUS
ANIPEST KENYA LIMITED AND ANOTHER………….DEFENDANTS
RULING

It is hardly surprising that the Law of Patents especially in Africa should be [cause] for difficulty. For long the registration and policy of patents has essentially been dealt with in the First World with registration in African countries of such (mainly English) patents forming the basis of protection.
It is not surprising either that African countries have sought to exert their own authority over patents but that only comparatively recently. It is a complicated area both legally and scientifically so it is hardly surprising that we have a few hiccups as will be seen from what follows:

I start with Kenya Industrial Property Act (CAP 509) which came into force on 2nd February 1990.
That contains in section 2 some definitions relevant to this case, although other definitions crop up haphazardly in the legislation as the draftsman needed them.

“ARIPO” means the African Regional Industrial Property Organization.
“ARIPO Protocol” means the protocol on patents and industrial designs adopted at Harare in December 1994.
“invention” means a new and useful art (whether producing a physical effect or not), process, machine, manufacture or composition of matter which is not obvious, or any new and useful improvements thereof which is not obvious, capable of being used or applied in trade or industry and includes an alleged inventions;
“Tribunal” means the industrial Property Tribunal established under section 118;
“utility model” means any form, configurations or disposition of elements of some appliance, utensil, tool, electrical and electronic circuitry, instrument, handicraft mechanism of other object or any part of the same allowing a better or different functioning, use, or manufacture of the same subject matter or that gives some utility, advantage, environmental benefit, saving or technical effect not available in Kenya before and includes micro-organisms or other self-replicable material, herbal as well as nutritional; formulations which give new effect.
It hardly helps understand the legislation that section 6(1) alters the definition of “invention” for the purposes of part III patentability.
“6(1) for the purpose of this part, “invention means a solution to a specific problem in the field of technology”. Does this mean that the solution no longer has to be new? The solution to that is in Section 7.
“7. An invention is patentable if it is new, involves an inventive step and is industrially applicable”.
Section 9 explains “inventive step” thus:-
“9. An invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the invention, it would not have been obvious to a person skilled in the art which the invention pertains on the date of filing of application or, if priority is claimed, on the priority date validly claimed in respect thereof.”
Section 10 explains “industrially applicable”
“10. An invention shall be considered industrially applicable if, according to its nature, it can be made or used (in the technological sense) in any kind of industry, including agriculture, fishery and services.”
It comes as no surprise to find that “new” does not mean new at all. In Section 8(1) “an invention is new if it is not anticipated by prior art; “prior art” is explained thus in Section 8(2).
“8. (2) For the purpose of this Act, everything made available to the public by means of written disclosure (including drawings and other illustrations) or by oral disclosure, use, exhibition or other non-written means shall be considered prior art provided that such making available occurred before the date of filing of the application or, if priority is claimed, before the priority date validly claimed in respect thereof.”
Part VI deals with international applications and in Section 32 states:
“32 (1) The Office shall act as a receiving office where an international application is filed with it and the applicant is a national or resident of Kenya.
(2) The office shall act as a designated office in the case of any international application in which the country is designated.
(3) A patent in respect of which Kenya is a designated state granted by ARIPO by virtue of the ARIPO protocol shall have the same effect in Kenya as a patent granted under this Cat unless the Director communicates to ARIPO, in respect of the application thereof, a decision in accordance with the provisions of the protocol that if a patent is granted by ARIPO that patent shall have no effect in Kenya.”
Section 32(3) is relevant to a decision in this case.
The rights of an owner of a patent are set out in section 36 which states:
“36. The owner of the patent shall have the right to preclude any person from exploiting the protected invention by any of the following acts-
a) when the patent has been granted in respect of a product -
(i) making, importing, offering for sale, selling and using the product; or
(ii) stocking such product for the purposes of offering it for sale, selling or using the product;
(b) when the patent has been granted in respect of a process -
(i) using the process; or
(ii) doing any of the acts referred to in paragraph (a), in respect of a product
obtained directly by means of the process.”
Under Section 39(1) the life of a patent is seven years from the date for the application extendable upon application for two periods of five years making 7+5+5=17 years.
The Act goes [on] to provide for “utility models” and for “industrial designs”- the latter defined in Section 72(1).
“72 (1) For the purposes of this Act, “an Industrial design” means any composition of lines or colours or any three dimensional form whether or nor associated with lines or colours, provided that such composition or form fives a special appearance to a product of industry or handicraft and can serve as pattern for a product of industry or handicraft.”
I have been unable to find what protection the registration of a utility model confers on the holder: the registered owner of an industrial design does get protection under Section 73(1) for 5 years plus 2 plus 2-total nine years.
Of course throughout the legislation there are decisions to be taken by the Kenya Industrial Property Office established under Section 3(1) but some of its decisions are appealable to the Tribunal.
No Tribunal has yet been appointed so the proper functioning of KIPO to that extent is stillborn 10 years after the Act became law.
So that is some, but by no means all of the legislative background. Suffice it to say it was a brave attempt but it needs fresh scrutiny to make sense of some of it.
What are the facts. I start with what is before me which is an application by the plaintiff for an injunction under order 39 Rules 1 & 2 to restrain the defendants their servants or agents from:
-Trading in production of
-Selling
-Pass(ing) off
Dealing in any way

With a foot-operated sanitary bin. In a word the plaintiff claims infringement of a patent and passing off.
Passing-off was not addressed in argument and was not pressed.
It is worth while referring back at this point to the protection granted a patent by Section 36.
What is given is the right to prevent any other person from
-making
-importing
-offering for sale
-selling
-using
-stocking

I will return to this later. What patents does the plaintiff claim: He claims:
1. ARIPO patent registration certificate AP 773 dated 15th October 1999 having effect in 5 African countries including Kenya. Application No. 19980904 for Foot Operated Sanitary/Litter Bin but no priority date filled in.
Furthermore while then certificate does refer to Rule 20(3) of the ARIPO Regulations it is unclear for me who promulgated those and I have not seen all of them: what I have stops at Rule 18.
In terms of Section 32(3) the ARIPO patent has effect as if it were a patent registered in Kenya unless KIPO otherwise directs under Section 32(3). The abstract attached to the certificate reads as follows:
“A foot operated litter/sanitary disposal bin comprising a container (1) closeable by a cover (2), with a disposal lid (3) at the top, with the disposal lid being displaceable, by a foot operated pedal (4) and a lift level (5), to move between open and closed positions. The bin is defined such that the user cannot see the contents of the container (1), waste scavengers cannot have access to the contents, emission of unpleasant odour is reduced and the contents cannot spill out if the bin is overturned.”
The claims and drawings are exhibited as are some photographs. I numbered the reverse of the photos 1-18: Nos 1-5 are of the bins in question. Nos 6, 7 & 8 are the bins in question hired out by the 1st defendant and Nos. 9-18 are other foot operated bins.
In addition the Plaintiff made an application to KIPO on 14th September,1997 and has an application number KE/AP/P797/00218. He exhibited a letter dated 7th November 1997 which includes the odd paragraph.
“Meanwhile you can go ahead and work the invention as it is assumed the invention is patentable until this office informs you otherwise after substantive examination”.
I have referred to Section 25 which sets out what the Director of KIPO does on receipt of an application. There is no basis in that section for the “assumption” that the invention is patentable as stated in the letter of 7th November 1997.
It is all very well having ARIPO as some sort of supra national authority but unless the domestic laws of participating countries mirror the international ones-which were not put before me- you have all the ingredients for catastrophic legal muddles. For example it is very unclear what would happen in this case if KIPO rejected a prospective patent which ARIPO had already registered: presumably KIPO would notify ARIPO under Section 32(3) that the ARIPO patent had no validity in Kenya.
Assuming as I do, that the ARIPO rules of patentability are the same as or very similar to those of Kenya, I return to the abstract to see what it tells me particularly about novelty.
“A foot operated litter/sanitary disposal bin comprising a container (1)[”:] nothing novel there;
“closeable by a cover (2)”: nothing novel there either: a disposal lid(3)”-still nothing novel:
“at the top, with the disposal lid being displaceable by a foot operated pedal (4)”: still nothing novel:
“and a lift lever (5)…” nothing novel,
“to move between open and closed positions. The bin is defined such that the user cannot see the contents of the container, waste scavengers cannot have access to the contents, emission of unpleasant odour is reduced and the contents cannot spill out if the bin is overturned.”
I only have to look at this matter prima facie. Are all these attributes prima facie novel. Prima facie they seem to be to me on evidence many many years old: certainly they do not seem to me to be prima facie novel-which is all I have to consider.
There is one other point to consider. The 1st Defendant hires out bins to others who use them. It does not prima facie seem to me that it comes within the protection afforded by Section 36. That section may be inadequate but so is much of the Act.
The 2nd Defendant designed his own bin; applied on 18th August 1999 for it to be registered as an industrial design.
Registration was effected under Certificate No. 136 on 18th November 1999. The Act confers protection on a regisreed industrial design, but fails to specify what happens if the same object is the subject of a patent and an industrial design at the same time by different people. Priority appears to be accorded by date of application-in respect of Kenya applications: the ARIPO situation was not addressed.

I doubt that the plaintiff has a prima facie case and I doubt that it has probability of success. Further I consider that damages would be an adequate remedy. If it came to balance of convenience, I would consider that balance favoured the status quo. In the meantime perhaps the Government of Kenya can set up ‘the Tribunal”. ARIPO can reconsider sensibly what is “new” and the Plaintiff can re-assess whether the lid-the only part of the invention that just might be new would qualify as an “industrial design” or a “utility model”.

This application is dismissed with costs.
Dated at Nairobi this 16th day of March, 2001.

P.J.S. HEWETT
JUDGE

References:

Kenya Industrial Property Act (CAP 509)
Central Kenya Limited vs. Tryst Bank Limited CA 215/1996.
Mohammed and Another vs. Haidara 1972 EA 166.
Brooke Bond vs. Chai Ltd 1971 EA 10
Giella vs. Cassman Brown 1973 EA 358.
Terrell: Law of Patents 14th Edition.
Beecham Group vs. International Products 1968 EA 398.