In Kenya, the world of patents is governed by the Industrial Property Act, which outlines clear standards for when an invention qualifies for protection.
Two of the most critical criteria under this Act are novelty and inventiveness (or inventive step). These concepts ensure that patents reward genuine innovation rather than ideas already known or obvious.
This article unpacks what they mean, why they matter, and how they operate under Kenyan law.
What Is Novelty in Kenyan Patent Law?
Legal Definition
Under Kenyan law, an invention is considered novel if it has not been anticipated by prior art. Prior art includes any information made available to the public — whether in writing, by use, exhibition, or in any non-written form — anywhere in the world, so long as it occurred before the patent application’s filing date or priority date.
Interestingly, the Act provides a limited grace period. Disclosures made within 12 months before the filing (or priority) date are not always disqualifying. But this only applies if the disclosure was made by the applicant (or their predecessor) or resulted from an obvious abuse by a third party.
What Does Inventiveness (Inventive Step) Mean?
Definition and Legal Standard
In Kenyan patent law, an invention must involve an inventive step — meaning it cannot be obvious to a “person skilled in the art,” given the existing state of the art. The standard requires more than just being different; the invention must represent a non-trivial leap over what is already known.
Applying the Standard
To assess whether an invention meets this criterion, examiners look at:
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The state of the art (what was already publicly known).
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Whether a skilled person, at the relevant date, would have logically combined or modified prior art in a way that leads to the invention.
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Whether the claimed invention makes a technical contribution — such as an improved performance, a new effect, or unexpected advantage.
If an invention is novel but plainly follows what was already known, it may fail this test for inventiveness.
Why Novelty and Inventiveness Matter
These two criteria serve as gatekeepers to patent rights. They protect the public domain, ensuring that known ideas remain free, while rewarding real creativity and effort. Without novelty and inventiveness, the patent system might grant monopolies for trivial or already-known ideas — which would stifle competition and innovation.
Moreover, by demanding an inventive step, Kenya’s patent system encourages inventors to push boundaries, rather than making minor tweaks to existing solutions. This aligns with the purpose of the Industrial Property Act, which seeks to promote genuine innovation.
How These Criteria Are Examined in Practice
When an inventor files a patent application with the Kenya Industrial Property Institute (KIPI), the office conducts a substantive examination to test for novelty and inventiveness.
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Novelty is assessed first: has the invention been made publicly available before?
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If novelty is satisfied, the examiner then asks: would this invention have been obvious to a skilled person, having seen the prior art?
KIPI’s guidelines make this process systematic.
Challenges and Practical Tips for Kenyan Inventors
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Prior Art Search Is Crucial
Before you apply, carry out a detailed search. Find out whether someone, somewhere, has already disclosed something similar — in published papers, patents, or even exhibitions. -
Draft Claims Carefully
Draft your patent claims to emphasize what is unique and non-obvious. Highlight features that differentiate your invention from prior art. -
Beware of Early Disclosure
If you publicly disclose your invention (for example, in a conference), keep in mind the 12-month grace period. Make sure your disclosure won’t invalidate your novelty claim. -
Consult Experts
Engaging a patent attorney or agent experienced with KIPI and Kenyan patent law can help you navigate both the novelty and inventive step evaluations.
In Kenya, novelty and inventiveness are fundamental to securing a patent. Together, they ensure that only genuine, non-obvious, and socially valuable innovations receive protection.
Inventors should understand these concepts deeply, prepare carefully, and engage professional help where needed. By doing so, they can navigate the path to patent protection successfully — while contributing to Kenya’s innovation ecosystem.
FAQs
Does a small improvement count as inventive?
Not necessarily. The improvement must be more than a trivial or predictable modification. It has to show an inventive step— meaning it would not have been obvious to someone skilled in the relevant field.
What if I disclosed my invention myself before applying?
If your disclosure was made within 12 months before your filing date, and it was by you or someone who abused your rights, that disclosure might not destroy novelty.
Who is the “person skilled in the art”?
This is a hypothetical person with ordinary skills in the field of your invention. KIPI assumes that this person knows the common general knowledge at the relevant filing date.
