#TellACABoss Online Debate: Balancing Protection of Public Health and Intellectual Property in Kenya

This blogger has inadvertently stirred a heated debate on social media involving health activists who are actively engaging the government to review Kenya’s Anti-Counterfeit Act. This blogger alerted the twitter accounts of Aids Law Project (ALP), the Anti-Counterfeit Agency (ACA) and the CEO of ACA to an article published on the CIPIT blog by Paul Ogendi – Deputy Director at ALP. In this article ALP raised concerns on the goverment’s implementation of the High Court’s judgment in Patricia Asero Ochieng & 2 Others vs Attorney General. This landmark decision declared the Anti-Counterfeit Act unconstitutional because of its provisions affecting access to essential medicines including generics. In his twitter response, Stephen Mallowah the ACA CEO stated as follows:-

These responses by the ACA sparked off a spirited twitter campaign under the hashtag #TellACABoss where various health activists reaffirmed that the constitutional rights of people living with and affected by HIV, TB and Malaria remain threatened unless the Anti-Counterfeit Act is reviewed particularly section 2 which defines “counterfeit”.

The position of the health activists is that the government has failed to acknowledge and specifically exempt generic drugs and medicines from the definition of counterfeit goods under section 2 of the Act. Therefore this broadly worded definition includes generic drugs thereby effectively prohibiting importation and manufacture of generics in Kenya. According to the health activists, the Act deems generic drugs and medication to be deemed counterfeit goods and therefore liable to seizure at any time
by ACA inspectors.
However ACA claims that this judgment by Justice Mumbi Ngugi is a judgment in vain as the mischief adjudicated upon has never happened and never will. The ACA is categorical that there have been no seizures of generic drugs anywhere in Kenya. In his twitter response to the #TellACABoss tweets, Mallowah tweeted:

The ACA boss does have a point: ACA operates in the trademarks space and can only enforce trademarks where a formal complaint has been made by the registered owner. From a policy perspective, both ACA and the health activists seem to be in agreement that the Act is not working for various reasons all of which require that the Act be amended. Therefore it appears that the review meeting was ACA’s way of getting stakeholders’ views and proposals on possible amendments to the Act. This blogger does not envy ACA’s position as it contends with diverging views from health activists as well as the pharmaceutical industry, the Kenya Association of Manufacturers and other interested parties.

  1. @paulogendi
    First, I am glad this conversation is taking place. It has been long overdue. The conversation has been limited within the health activists with minimal participation from other stakeholders including the private sector and the government. Second, I will address one issue that I think is at the centre of this debate, patent linkage. I have five points to deal with it. One, the definition of ‘counterfeiting’ under section 2 of the Act is stated as follows: ‘taking…functions without the authority of the owner of intellectual property right subsisting in Kenya or elsewhere in respect of protected good’ (my emphasis) Second, intellectual property right has subsequently been defined to include ‘(d) any right protected under the Industrial Property Act.’ Third, the Industrial Property Act of 2001 protects a range of IP rights including patents. Fourth, section 32 creates an offence of counterfeiting based on the above definition which includes patents and by extension also criminalises generics. Last, section 34 of the Act empowers the Commissioner to seize and detain all suspected counterfeit goods. To remedy the situation, the review process must achieve at least two results. To begin with, the Act must delete Industrial Property Act under its scope. Moreover, it should attempt to define ‘counterfeiting’ in the manner defined by the TRIPS Agreement which is willful counterfeit trademarks on a commercial scale Paul Ogendi.
  2. Ogendi
    @Smallowah: On the question of the absurdity of criminal enforcements of patents, I reviewed a 2008 International Patent Litigation Survey report by Harness Dickey. In this report, it is clear that the criminal enforcement of patent infringement is in practice in many jurisdictions. Out of 17 jurisdictions surveyed 12 applied criminal enforcement for patent infringements. These countries include Argentine, Canada, China, France, Germany, Italy, Japan, Russia, South Korea, Sweden, Taiwan (ended in 2001), and Vietnam. In fact, according to Chinese Supreme People's Court and Supreme People's Procuratorate, counterfeit patents are criminalised just like in Kenya. Countries that do not apply criminal enforcement of patent infringements include United States, India, United Kingdom and Malaysia.
Leave a Comment

Your email address will not be published. Required fields are marked