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ARIPO v National Courts

Two cases in Kenya illustrate the difficulties countries face handling ARIPO patents. (See here for details about ARIPO.)

The fundamental question is whether issues relating to ARIPO patents can be decided by national courts? It ought to be obvious, but lack of implementing regulations and lack of clarity on how extra territorial rights can be dealt with locally, are common problems in ARIPO countries. Kenya now has clear decisions on the issue.

The first case is the 2010 decision in Chemserve Cleaning Services Ltd v Sanitam Services Ltd. Chemserve filed a case claiming that Kenya's Industrial Property Tribunal (IPT) lacked jurisdiction to hear and determine issues regarding an application to revoke an ARIPO patent for a foot operated litter/sanitary disposal bin covering Kenya. Kenya is an ARIPO member which has adopted the Harare protocol implementing the ARIPO system into its national patent rules. This was decided as a preliminary objection in 2009 and the IPT held it could not revoke an ARIPO patent. On appeal Justice Musinga decided in 2010 to overturn the IPT decision, that the IPT could decide on revocation of the patent.

The 2013 decision of the IPT in Glenmark Pharmaceuticals v Les Laboratories followed Justice Musinga's approach declaring that the IPT and courts have the power to revoke ARIPO patents under the Industrial Property Act. In Kenya, national courts now have a clear power to revoke the Kenyan designation of ARIPO patents.

For more information, please contact Nick Redfearn.

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