By Caroline Wanjiru

Intellectual property is a product of human creativity. How ideas are expressed. But how far back can we trace creativity? It begun with human beings. Today we theorise on this based on the creation theory supported by the Charles Darwin theory on the origins of man.

The creation theory is based on religion, a divine deity who created everything and is found in most religious books. The Bible, in the book of Genesis, states that in the beginning, the earth was formless, void and filled with darkness and then through proclamation, God-the divine deity, created light, water, skies, living creatures and dry land. The dry land was called the earth. God then made wild animals of every kind and everything that creeps upon the ground of every kind. In Genesis chapter 1:26-27, God said, let us make humankind in our image, according to our likeness; and let them have dominion over the fish of the sea, and over the birds of the air and over cattle, and over all the wild animals of the earth and over every creeping thing that creeps upon the earth. With this God created humankind in their image, male and female, they created them. The creativity here rests wholly in creation of human beings and their complexities including the intricate nervous system, brain, the complex female reproductive system and all human parts. Is this where it began? How does IP law relate to this creativity?

Our discourse begins here today. Intellectual property theories propose that when one reduces their ideas/creativity into a tangible form-expression of ideas, they are entitled to receive periodical and monopolistic rights over the said creation. If the human beings are the result of a creative process of the divine deity, can we argue that the latter owns or at some point owned the IP in the human body, if any?

This blogger theorises that if there were IP rights in a human body, it would include patents, as we know of them today. Patent law protects inventions that are novel, industrially applicable and not obvious. Section 2 of the Industrial Property Act (IPA) defines an invention to mean a new and useful art, process, machine, which is not obvious, or an improvement thereof capable of being used or applied in trade or industry and includes alleged invention. According to the Bible, there were no human beings in existence before the first human being was created; this would make the human body/being novel. It would not be an obvious creation as the existing or prior art comprised of wild animals which although bear some similarities to the humans, the latter bear distinct characteristics such as the female reproductive system. The human being was created and conferred with rights to control and rule over all that was/is on earth, therefore passing the test of industrial applicability of the invention.

The reference to “…let us make humankind in our image, according to our likeness and proceeding to make/create a human being” in the creation story presupposes the involvement of others who are not the creator referenced in the bible. This would raise the concept of joint ownership over the creation. Where an invention is as a result of more than one person, then the ownership in the creation is vested in the persons involved in the process. To claim ownership, one must have contributed through application of skill and labour.  Therefore, if a person simply reviews creative work and makes minimal edits such as spellings and sentence formations, they would not be entitled to joint ownership. However, where such review contributes substantially to the work, then the person making such contribution maybe entitled to claim ownership. Under section 30 of the IPA joint ownership of inventions would be where more than one person jointly make an invention. Section 63 provides that where there are joint owners, exploitation of the patent rights shall be equal amongst them unless otherwise provided. Joint ownership is a question of fact and varies from case to case.

So, for how long would these rights exist? IP Protection is not an eternal right[1]. Section 60 of the IPA, provides that a patent shall expire after twenty years. In the case of human being creation, the divine deity’s probable patent in Kenya would expire after 20 years from its date of application was filed with KIPI. After this period, an invention falls to the public domain meaning that anyone is/would be free to use the invention without infringing on the owner’s rights. The Centre for Genetics and Society defines human cloning to production of a genetic copy of an existing person. In the absence of any laws preventing it, human cloning can be considered infringement where the rights of the divine deity are protected under patent law. In support of the Big 4 Agenda, KIPI periodically publishes a list of expired patents whose technologies are free for commercial use by the public without infringing on the patent owners rights. 

For purposes of computing the term and validity of the patent, the question then arises as to when the creation actually happened. Ideally, a patent application should be filed every time there is an invention or when there is an improvement of the existing invention(s). In the creation theory, each human being is said to be created in the image of the divine deity. This has three possibilities, first, that the divine deity is unique and morphs after every creation making every one human being created in their image a novel invention. Take for instance the fingerprints, it is said that every human being has different or unique design of their fingerprints. Is this an invention? Second, that the first human being created had all the components of a human being all subsequent humans are the same. Third that the subsequent humans are improvements to the first ones invented. In the first and third scenarios where there is an invention but an existing patent, the grant of patent would not be automatic. If the inventions are novel, they would have to be subjected, independently, to the patentability test as discussed above.

Fingerprints as a component of the human body would be considered as an invention capable of patent protection. The concept of the fingerprints in itself would not be patentable, as it has existed with previous human beings, but the process of making or producing the fingerprints may qualify for patent as long as it is novel/unique with each human being. This would be a process patent. The product being the different or unique appearance of the fingerprints in every human being, would be a question for industrial design protection. Industrial design is a form of IP that is available for any composition of lines which gives a special appearance to a product and can serve as a pattern for a product in the industry[2].

Where inventor introduces new aspects to an invention to improve its functionalities, those improvements are considered inventions for purposes of patent protection.  In the case of the human body, genetic mutation is often possible with time and as a response to the environment that the human is in. In the 1800s, Charles Darwin’s publication On the Origin of Species presented a systematic explanation on the evolution of man.[3] Darwin posits that evolution of man (species) is was a result of natural selection where organisms change over time in accordance with the prevalent environmental conditions in order to increase their ability to compete survive and have offspring[4]. It is therefore possible that the human body has improvements which are natural and independent of their creation. Such naturally occurring improvements would not qualify for patent protection[5].

Where improvements qualify as inventions for patentability purposes, their registration allows for the extension of the life of a patent beyond the 20-year period. This practice is called evergreening. Evergreening prevents patents from getting/falling into public domain and results in extending the IP monopoly granted by the State as long as their improvements are registered as patents.

So where would these patents be enforceable?

Patent protection is territorial. This means that patents are limited to the geographical territory/country where a grant has made. Registration must be obtained in all the countries the owner wishes to trade in. For instance, a patent issued in Kenya is not enforceable in Uganda. The concept of an international patent therefore does not exist in law.

There are countries that have adopted one law to govern all of them on patent registration. Such countries often have one office that receives, examines and grants patents on their behalf. Here the patent granted by such an office covers the countries subject to the one law on registration. French speaking African countries have joined hands to form OAPI that administers IP rights in the region[6]. In Europe, there is European Patent Office that centrally grants patents[7].   

To facilitate the ease of filing applications, countries enter international and regional cooperation arrangements where an applicant can apply to register a patent in several countries without having to travel or engage an agent there. In the international scene, we have the Paris Co-operation Treaty (PCT), which allows individuals from the member States to apply for a patent in all its 153 contracting States. Regionally we have the Harare Protocol where individuals in member States can apply for a patent through ARIPO to its 19 contracting States. In the case for PCT and ARIPO applications, the applications are centrally received and forwarded to each member State to examine and either grant or refuse an application. The decision is then communicated through the central office to the applicant. Kenya is a signatory to the PCT convention and the Harare Protocol.

In the case of the divine deity patent, the application must be made in all countries where the human being is to be released.

Can we patent human beings really?

Lastly, it is important to note that section 26 of the IPA Kenya expressly disqualifies inventions contrary to public order, morality, public health and safety, principles of humanity and environmental conservation from patent protection. Human cloning has since its introduction, been consistently and overwhelmingly opposed for various reasons including public morality.  Examples under section 26 would include inventions of disease causing viruses and related methods of production and process of developing or creating a human body.

In the coming blog pieces, we shall endeavour to trace where we are going with human creativity. Specifically we shall explore the related IP questions around artificial intelligence created in the likeness of the humankind. Feel free to send in your thoughts on the same.

---

[1] It is at times argued that trademark protection is not limited by time as registration of a trademark is renewable for an indefinite period after it is granted.

[2] See Section 84 of the Industrial Property Act

[3] P. Sloan, “Darwin: From Origin of Species to Descent of Man” The Stanford Encyclopedia of Philosophy (Summer 2019 Edition) at https://plato.stanford.edu/entries/origin-descent/

[4] Ibid

[5] Section 21 (3) (a) of the IPA excludes discoveries from inclusion as inventions, hence patentable

[6] OAPI has 17 member States that are signatories to the Bangui Protocol establishing the regional offices and central registration framework for Patents in the region. See http://www.oapi.int/index.php/fr/

[7] EPO has 38 member states including the 28 EU member states. For more see https://www.epo.org/about-us/at-a-glance.html