‘Patenting the Un-patentable: Lessons for African Patent Systems from a Review of Patent Subject Matter Exclusions in Kenya,’ co-authored by I. Rutenberg and V. Nzomo, explores the grant of Kenya’s first post-independence patent in 1994 for a tick larvae-derived protein. Notably, this patent included claims related to animal treatment, despite statutory exclusions. It delves into the fundamental trade-off of the patent system, where inventors disclose knowledge in exchange for a limited monopoly, assuming expert evaluation of patent claims based on statutory criteria. Subject matter eligibility limits in patent law minimize societal burdens. Deviating from this norm risks making the patent system more exploitative than beneficial. The article traces historical subject matter exclusions from patents, using Kenya as a case study, and presents preliminary data on patents with excluded subject matter claims. It aims to guide other African countries in strengthening their patent systems for the public good.

Patenting the un-patentable: Lessons for African patent systems from a review of patent subject matter exclusions in Kenya.
South African Intellectual Property Law Journal, 5, (2017) pp 58–74.

Authors: Isaac Rutenberg and Victor Nzomo

Download PDF