Our staff writer Susan Mabonga recently interviewed Prof. Norah Olembo the immediate former Managing Director of Kenya Institute of Property Institute (KIPI) in relation to what impact IPR has had on technological innovation especially in biotechnology.

Q: Briefly comment on Africa’s position in the light of the recent stand-off between the US and Europe over GMOs?
A: Africa’s immediate concern is to increase food production. I don’t know of any time in the recent past when we have exported maize or sweet potatoes to Europe. We are growing these crops for domestic consumption.
The worry now should be how to meet our domestic food requirements, and biotechnology allows us to meet the needs. Our worry should not be on Europe’s attitude but about the millions starving in Africa.
I think that is the bottom line. And we should be asking ourselves;Who are we producing food for? Do we want to produce for Europe or do we want to eat and save our people from hunger?
Q: Many African countries do not want to grow GM crops for fear of losing their European market.What do you have to say about this?
A: We have to be specific and clear on what commodities we want to trade in with Europe. We are producing flowers and trading very well with Europe and, as far as I know, they have not refused to take GM flowers from other parts of the world.
When it comes to foods such as beef and fish, negotiations must be realistic. Right now we don’t have GM fish in Kenya. But it does not mean that in future we will not have it. Things change from time to time, depending on circumstances.
What we need in Africa is to increase food productivity and use the safest methods possible to produce it. This is why one has to make sure the biotechnology is absolutely safe.
I think, Europe is being unfair in holding us at ransom with threats of boycotting our food exports when they themselves are indulging in biotech in other fields. For instance, nearly half of the medicine we use now are produced biotechnologically, and their labs are carrying on with biotech work at very intensive levels.
Q: What is Kenya’s stand on labelling?
A: We have not made our stand very open. It has not been debated, but the fact is that we are signatories to the Cartagena Protocol. It needs to come out clearly at various levels of our administration what our stand is on this matter.
We need to have a clear-cut statement on we should be doing. We for instance require laboratories that can test whether foods are GM or not. We would also have to monitor our market places to ensure GM foods are labelled. It is going to be a very cumbersome exercise.
Q: How far has Kenya gone in adopting biotechnology specifically with regard to developing the biosafety regulations?
A: Kenya is one of the leading African countries in the adoption of this technology.The others are South Africa and Egypt, which have biosafety guidelines in place. In the early 1990s a team of stakeholders was put together and mandated to came up with the guidelines.
They have been functional for the past four years. Many other countries in Africa are just beginning to set up the guidelines, which are very useful and necessary before one embarks on utilising GM in their everyday research and productivity applications.
Q: What do we stand to gain once the Cartagena Protocol comes into force?
A: The greatest gain is giving confidence to the potential users. This is an international instrument and everybody in the world who signs it is putting into effect similar requirements for dealing in GM. So it gives us the confidence that we are doing the right thing and that we are taking safety measures necessary for our people.
Q: Briefly explain the purpose of IPRs and outline what entitles patents on biotech process and products?
A: The intellectual property process in Africa has now taken off. Although, it took a little while because in our traditional ways, the issue and owning intellectual property were really never the case. We had communal ownership of various traditional products. The concept of an individual or a group owning intellectual property was a bit foreign to us. This is why it has taken long for us in Africa to adopt the procedures. In Kenya, it is well grounded now. The public is getting to know more and more about IPRs and its usefulness in industrial development. IPRs ensure there is a reward for the inventor, aand this stimulates more invention and thinking, resulting in new technologies to improve our standards of living.
Q: KIPI is charged with promoting innovation and inventiveness in Kenya. What strategies have you employed to meet this objective, especially in biotechnology?
A: Generally, the law spells out what our mandate is. The mandate includes four major areas. The first is the administration of IPRs, that is trade marks, patents, industrial designs and utility models.
We have other IP arms which are looked after by other institutions in the country, like copyrights which are administered from the attorney-general’s chambers, and the Plant Breeders Rights, which is under the ministry of agriculture. The other major aspect of our role is information; we are to enhance public awareness and involve ourselves in the transfer of technologies, which have been created through IPR protection. We want to ensure our people take advantage of that technology transfer.
Q: Your institutions will be screening technology transfer agreements and licences. How do you intend to do this in biotechnology?
A: Screening of licenses was a major issue before we liberalised trade. It’s now a voluntary requirement which is useful to those who choose to use it. Africa has been a dumping ground for obsolete products, and screening may be a useful for a country like ours, which is still developing and relying on foreign technology.
So, when an interested party goes out to source technology it is advisable that they are assured that the technology will be useful. There were many technologies in Kenya, which have now become obsolete because of lack of vetting or screening to see that they are useful.
Q: Most developing countries cannot effectively handle intellectual property issues; how far has Africa gone in utilising the IP system?
A: Africa as a whole is taking big steps in putting in place national policies to manage IP issues. In fact, two organisations which bring together a number of countries are doing a great job in sensitising the continent on the importance of IP. These are the Africa Regional Industrial Property Organisation (ARIPO), based in Harare, and the African Intellectual Property Organisation (OAPI) in West African countries. Together they have a membership of more than 32 countries.
Q: You have just come back from an overseas trip on biotechnology and IPR issues. What is the general global trend in the adoption of GMOs, especially the foods?
A: It is very positive. For example, three years ago, I attended a biotechnology meeting and we had protests galore. We had people coming in with banners and so on. This is a yearly event. A year later, these groups were much less visible.
This year, there was not a soul around; there were no police, and there were 20,000 people altogether. No security measures whatsoever in the heart of Washington. The discussions were vibrant and the mood was so positive. The keynote speech was delivered by US President George W. Bush and he had a lot to say about the US support for African countries in their effort to utilise biotech safely to increase productivity.
Q: Do you view biotechnology as the answer to Africa’s food question?
A: Biotechnology is a useful tool. But it is just a cover name; there are many aspects. We have a lot to gain by employing these methodologies in various ways to look after not only food productivity, but also our health and the environment.
There are many positive aspects of biotechnology and we need to put aside activism and appreciate it.
Q: It is said that the patenting criterion for novel GMO in Europe is different from that in the US. What do you attribute this to, and which system is Kenya aligned to?
A: Protection of plants and other living organisms is done in various ways. In the US they have adopted patenting, which is probably the strictest or the most intensive of the protection regimes.
The US found that the plant breeder’s rights regime was a little bit weak, especially now that we have biotechnology. Parts of plants (modified plants) were not really fitting into the breeder’s variety laws, which look at the outside features.
I can’t rule out other countries following suit, but according to the Kenyan law, we do not protect plants by patent; we do so by the breeder’s rights, which are administered by the ministry of agriculture.
Europe too protects plants through the breeder’s rights. But signs are that protection by patent is debatable because of the new methodologies that have come up in developing new varieties.
Q: Which other African countries provide protection of biotech inventions by patents, and how far have they gone in GMOs patenting?
A: We have to be careful here; are we talking about patenting of plants or of plant parts? In Africa, nobody patents a plant. The regimes don’t contain plant patenting. It’s only the US that patents plants, and Europe might follow suit.
Q: What are the possibilities of protecting traditional knowledge under the current IP regimes?
A: This is now the talk of the world today. Our officers attended a big meeting in Geneva recently to discuss what to do about traditional knowledge and practices that we have always taken for granted. Such meetings have been going on for the last four years, but now they are picking up in that definite recommendations are beginning to emerge on what to do.
The meeting recognised that even the existing regimes could be utilised in protection so long as they meet the criteria. But to a large extent most of the criteria insist on newness and naming the inventor. In the African traditions and cultures, we’ve had groups of people or nationalities owning something collectively, and that does not meet one of the essential criteria, so these are some of the difficult aspects that these meetings are looking at.
Secondly, the other area looked at is that of material set-ups lost to other entrepreneurs who, through biopiracy, unwittingly take materials from communities, work on them a little and protect them. They then proceed to bring back some of the products of these materials at high costs to the countries of origin.
The critical element in the discussions is how to deal with stolen materials known to belong to certain communities, in both arts and biology.
Q: Various international conventions and treaties are addressed under different organizations. For example, Trade-Related Aspects of Intellectual Property Rights (TRIPs) are being addressed under the World Trade Organisation (WTO). How do they relate as far as trade is concerned?
A: The linking element is that they deal with protection of products. Now that trade is liberalised, ownership becomes a very important issue because if you own something you may trade in it, and that was found to be the necessity for including TRIPs in WTO because it was founded after various discussions, but still ownership became a topmost thing.
They all interrelate because in TRIPs the practice that has been spelt out at the Paris Convention, and is administered by WIPO, is mentioned and is absorbed in TRIPS. TRIPs does not come up with its own new laws as such, but it may add to what is in other conventions that have been in practice in the past.
Our countries cannot afford to ignore what the conventions, laws and protocols entail because, right now, they are the supreme requirements for trade and it is very important that we involve ourselves in them.
This is why in Kenya we are very keen to send experts wherever and whenever these discussions are going on. Two years ago, when the Doha meetings were going on our country played a leading role in advocating the adjusting of TRIPs requirements so that we could access our medicines a little more easily.
These protocols are binding, and when you are doing trade globally you can’t move if a law says you cannot do this.
Q: Is Kenya is currently TRIPs-compliant? What is the industry’s response with regard to compulsory licensing, parallel importation and Bolar provision to access essential drugs such as the anti-retrovirals?
A: It’s more than a year since our law changed to allow parallel importation, Bolar provisions and compulsory licensing. All the clauses were put in so that these clauses would be used immediately because at that time our crisis with Aids was at its highest.
But to date, we have not seen enough enthusiasm in applying these provisions. There could be reasons, one of them being our capacity. But that should never be an excuse because capacity building is not a static thing. If you don’t have the capacity, you have to look for ways to build or acquire it. Our industries may be reluctant because they can foresee no potential market for their products. We need to look at other supporting regulations, which may not be in place. There is also the need to liaise with other ministries like Health to see whether they have licensing capacities and ability to look at medicines that have been introduced in the country under those clauses and determine if they meet the standards. There is a lot still to be done. It’s one thing making a law and it’s quite another applying it.
Q: Briefly outline the government’s strategies to curb the importation of counterfeit goods, including fake seeds.
A: This is one of the areas of our main concern because counterfeit goods can ruin an economy and endanger health. Our industries that are producing goods locally have been frustrated by people who steal their names and trade marks to produce substandard materials.
This is theft. So the government has put together an interministerial committee which is collaborating with our institution because we are the custodians of aspects like trade marks and patents. Together with the private sector we are working to discourage the coming into the market of counterfeit goods.