| dc.description.abstract | The grant of a patent entails the conferment upon the owner of the patent of exclusive rights of exploitation of the invention. It is in essence a grant of a monopoly. On the other hand the concern of competition is, to the extent possible, to level the playing field in commercial endeavour as between the various actors. There is therefore an apparent conflict between these two r areas of law to the extent that on the one hand the law creates a monopoly while on the other it seeks to control monopolization in the market.
The situation is complicated further by reason of the fact that international trade law now imposes upon states parties to the Agreement on Trade Related Aspects of Intellectual Property Rights (hereinafter otherwise . referred to as 'the TRIPs Agreement') the duty to legislate and conform their domestic legal regimes to the prescriptions of the said Agreement with regard to the protection of patents. That Agreement not only sets minimum standards for the protection of patent rights but also recognizes that the exercise of patent rights can be inimical to competition. The problem however is that the Agreement does not establish any comprehensive standards by which patent and competition issues can be addressed. In essence therefore matters relating to patents and competition remain within the residual jurisdiction of member states.
This work considers whether Kenya's legal regime recognizes and addresses the peculiar conflicts that arise from the exercise or purported exercise of patent rights in a competitive economic environment and whether therefore the same sets out any standards or principles by which such conflicts can be resolved. The work also investigates whether the TRIPs Agreement contains any or any sufficient standards and principles at all which would be applied in resolving the conflicts with due regard being accorded to the circumstances of Kenya and other developing countries.
It is averred in the work, first, that the applicable legislation in Kenya are structured in a manner which presupposes that either one or the other of the two areas, whether competition or patents, does not exist and therefore no conflicts peculiar to their interaction would arise. The legislation therefore fail to set out standards which recogmze and specifically address the uniqueness of the conflicts involving patents and competition. Furthermore, the legislation are not only deficient but create uncertainty to the extent that their exact ambit with reference to competition and patent issues are unclear.
The second averment is that the TRIPs Agreement makes minimal contribution with respect to identifying the areas of conflict arising from the exercise of patent rights and competition. In this respect the TRIPs Agreement while recognizing that the exercise or purported exercise of patent rights can be inimical to competition, fails to set out any standards and principles through which the conflict between such exercise and the need for competition can be resolved. This omission in the TRIPs Agreement is reflected in the Industrial Property Act, 2001 whose intendment was to conform Kenya's legislative framework to the TRIPs Agreement.
The third averment is that for Kenya to develop a set of dynamic principles which would satisfactorily address the unique problems posed by competition and patent issues there is a need to move away from reliance on administrative remedies and to confer on the courts the responsibility of _ resolving disputes, whether the disputes are between the state and
individuals or between individuals inter se. In this way courts will be able to develop dynamic principles which can be applied in resolving conflicts arising from the exercise of patent rights and the implementation of competition policy within the purview of the philosophy adopted by the legislature.
A three-step methodology has been adopted in articulating the issues identified in the assignment. The first step involves a broad outline of the nature and aims of both the protection of patents and competition and the manner in which conflicts ensue. In this connection various approaches which have informed the resolution of conflicts involving patent rights and
competition are set out. The second step is a consideration of the provisions of the TRIPs Agreement which address patent and competition issues either directly or indirectly. A critique of these provisions from the perspective of developing countries, of which Kenya is a part, is also set out. This analysis of the provisions of the TRIPs Agreement enables a more wholistic appreciation of the shortcomings of the Agreement.
The third and final step is an account of Kenya's legislative corpus on patents and competition and a consideration of whether the same is adequate in serving the needs of the society in this vital area. The third step also sets out various proposals for reforms. As a preliminary matter, there is a clear need to clarify the exact scope of the Restrictive
Trade Practices, Monopolies and Price Control Act, Chapter 504 of the Laws of Kenya; but in addition there is also a need to develop dynamic principles of competition law to address the peculiar demands of this area of law.
More specifically it is proposed, first, that deliberate steps be taken in law courts to adjudicate disputes between the state and individuals and inter se. philosophy needs to foster a greater role for courts in the interpretation of the .law reason in the assessment of the impact of trade practices on the market. Only in this way will the intricacies which attend the interaction between patent rights and competition be sufficiently addressed. | en_US |
