Duty to disclose invention to the Patent Office to get patent protection: The disclosure must be full disclosure and must enable the PHOSITA to use the product. Where one discloses in a journal or newspaper without seeking protection, in some cases one may lose novelty and at other times not due to full and enabling disclosure. Some of the scientific journals for purposes of disclosures such as Lancet the Journal of Medicine is taken seriously, Nature Journal , New England Journal of Medicine - A patent lawyer has to read these journals. Suppose one discloses in the context of delivering samples in a confidential context? When one sends a colleague material under confidential cover, is that disclosure? No it is not. The first person with an invention to get to the Patent Office is the one who gets the Patent – in Kenya they have first past the post – philosophy and in some countries researchers try to outsmart each other.
In Kenya we do not have the equivalent of the Section 6 of the Lesotho Patent Act under which all officers of the patent office are bound not to disclose the information and that in case they do they will suffer imprisonment, fine or both. The fear is also well-placed because the Public Officer Ethics Act and the Common Law Rules on privacy and protecting information and Copyright, Trade Secret, the Official Secrets Act all of these Acts do not have a firm basis for protecting information disclosing to a Patent Officer by an Inventor. On the other hand The Official Secrets Act, Public Officer Ethics Act, Common Law Rules as well as copyright can actually be used to protect patent information. A patent can have two forms of protection
1. Patent or product process – protected..
2. Disclosure of information, the claim, the description, the drawings which are all protected under copyright.
One can argued both ways about protection of an invention.
This is sometimes called non-obvious – it is not obvious to PHOSITA. Inventive step is UK-Kenya term and for US it is Non-Obivousness. Non obvious does not mean that it must be complex, it could be a very simple process. PHOSITA need not be a complicated scientist, he need not be Einstein he can be of a lower standard than the inventor. PHOSITA can even be an unimaginative unskilled worker. But some people like Lord Morton have argued that PHOSITA must not be a mechanical idiot but a mechanical genius and this was the case in Gillette Razor. The halfway house is that PHOSITA must be a cross between the genius and the idiot, intelligent enough who has some expertise in that specific field.
Utility is the convergence between the intellectual and the property or commercial in Intellectual Property, it brings the issues home. After we have invented, there is emphasis on utilitarianism and one has to prove that an invention is useful. Something may appear useful but it may not be patent, moneychangers, cannot patent their con-game, issues.
This means that it is not good enough to reproduce a prototype or model, a product must have the ability to be mass-produced to be useful to Kenyans and the world. It may be difficult to develop biological models.
Section 37 – Right of Priority – the right of priority, one has duty to disclose whether there are other inventions that are in the field that you have applied for. all the applications have to be sent within 12 months, one can seek priority to be granted a patent where they live even though they are aware that it is patented elsewhere by somebody else. When one is an inventor they must disclose what other inventions close to theirs that people have made and gotten protection elsewhere, an inventor buys time before one comes to their market to file for patent. A Kenya may seek priority to be protected in Kenya even though another inventor has filed papers somewhere