Protecting Industrial Property Rights

If an invention concerns a micro-biological process or the product thereof and involves the use of a micro-organism which is not available to the public and which cannot be described in the patent application in such a manner as to enable the invention to be carried out by a person skilled in the art, the invention shall only be regarded as being disclosed if:

1. a culture of the micro-organism has been deposited with a depository institution not later than the date of filing of the application;
2. the application as filed gives such relevant information as is available to the application on the characteristics of the micro-organism; and
3. the depository institution and the file number of the culture deposit are stated in the application.

This information  may be submitted within a period of sixteen months after the date of filing of the application or, if priority is claimed, after the priority date.

The deposited culture can be made available upon request by any person having the right to inspect the files. A person to whom a deposited culture is made available may not do any of the following until the application is refused or withdrawn or, if a patent is granted, until after the patent ceases to have effect

1. make the culture available to any other person; or
2. use the culture other than for experimental purposes.

However this does not apply with respect to anything done for the service of the Government by the Government or a person authorized in writing by the Government. A person who contravenes this provision is guilty of an offence and is liable, on conviction, to a fine not exceeding six thousand shillings or to imprisonment for a term not exceeding six months or to both.

If a deposited micro-organism ceases to be available from the institution with which it was deposited a new deposit should be made accompanied by a statement signed by the depositor indicating that the newly deposited micro-organism is the same as originally deposited.

The following are the recognized depository institutions in Kenya:-

1. the Kenya Agricultural Research Institute; and
2. the Kenya Medical Research Institute