TY - JOUR AU1 - Rutenberg, Isaac AB - The author Dr Isaac Rutenberg is the Director of the Center for Intellectual Property and Information Technology Law (CIPIT) and a Senior Lecturer at Strathmore University in Nairobi, Kenya. This article Tea is grown, processed, sold, and consumed in Kenya, with significant cultural and economic importance. As Kenya’s largest export, Kenyan tea is among those of the highest quality on the global market and is a source of national pride. With hundreds of thousands of smallholder tea farms contributing to cooperative-owned processing factories, tea provides direct and substantial income to a significant percentage of the Kenyan population. The sector is highly structured and regulated and includes research and development that is occurring in both public and private entities. The Kenyan tea sector is therefore targeted as a case study for exploring various aspects of the sectoral use of Intellectual Property Rights (IPRs) by local and international stakeholders. Data are presented and analysed regarding the existence of formal IPRs, ownership of such IPRs, and the trends of such IPRs over the last several decades. This work concludes that there is a substantial quantity of IPRs existing in the Kenyan tea sector, that such IPRs are highly concentrated in non-Kenyan owners, and that there are indications of recently increasing local usage of IPR. The article also includes a brief discussion of the merits of introducing a Geographic Indications (GI) system in the context of the Kenyan tea sector. Introduction The World Intellectual Property Organization (WIPO) has reviewed the use of intellectual property rights (IPRs) in global value chains, with particular emphasis on the agricultural sector.1 Various forms of industrial property are suitable for the different upstream and downstream stakeholders and are an important consideration when discussing how technology flows along the value chain.2,3 Tea is among the most important significant sectors in Kenya. First grown in Kenya in 1903, tea was one of the most important crops during the colonial period, which ran from 1897 to 1963. Processed tea remains a major export, as Kenyan tea is globally considered to be very high quality. In 2018, tea was Kenya’s largest export, earning over USD 1.3 billion, which was more than twice the value of exported cut flowers and approximately six times the value of exported coffee.4 Furthermore, unlike coffee, the domestic market for tea is very strong, and local consumption of tea has significant social and culturally importance. The extent to which Kenya’s tea sector makes use of formal IPRs is an open question. In view of the importance of tea, and to provide a case study of a sector using multiple forms of IPR, this article reviews and evaluates the use of IPRs within the Kenyan tea sector. Methodology and outline This study focuses exclusively on certain types of industrial property: patents, trade marks, plant variety protection (PVP), and plant variety regulatory approval. The data in this study were sourced primarily from online sources, including databases maintained by WIPO (Patentscope and the Global Brands database), the African Regional Intellectual Property Office (ARIPO, via the ARIPO regional IP database, important since Kenya is a member of the Harare Protocol on Patents and Industrial Designs under ARIPO), and the International Union for the Protection of New Varieties of Plants (UPOV, via the PLUTO database). Additional data were obtained directly by request from the relevant national IP offices, specifically the Kenya Industrial Property Institute (KIPI) for patents and trade marks, and the Kenya Plant Health Inspectorate (KEPHIS) for approved national varieties. Specific items of IPRs were identified through online searches, using keywords, patent classifications, and other forms of field-specific searches (eg search of ownership, etc). This article begins with brief descriptions of Kenyan IPR systems and the Kenyan tea industry, and then reviews three specific aspects of IPRs in the tea sector: ownership of IPRs, technology in the tea sector, and trends in IPRs. A further type of IPR, geographic indications (GIs), is discussed in view of the potential role that GIs could play in the sector. The article concludes with observations and suggestions for future research. Background: IPR systems and the structure of the tea sector in Kenya Compared to many African countries, Kenyan IPR systems are relatively well developed and high functioning.5 The relevant laws for patents and copyrights were substantially revised in 2001; although the law on trade marks is from prior to independence, it has been updated numerous times. Kenya is a party to the 1991 revision of UPOV and the law of plant variety protection was substantially revised in 2012.6 In these forms of IPRs, Kenyan laws are generally compliant with obligations under the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). They have even been characterized as overly restrictive for failing to take full advantage of certain flexibilities available under TRIPS.7 Like its IPR systems, Kenya’s tea sector is highly structured. The legal and regulatory framework developed over several decades and is now governed by the Tea Act 2020 and the Crops (Tea Industry) Regulations 2020. Small- and medium-scale tea growers are required to register with a local tea factory; registration with a tea factory confers shareholder status on the grower.8 It is a criminal offence to fail or refuse to register and also to sell tea without being registered.9 Tea factories and large-scale tea growers (cultivating more than 50 acres) are required to register with the Tea Board of Kenya, a parastatal organization originally established in 1950 under the colonial government.10 Wholesale tea prices are allowed to fluctuate according to market demand, although the Tea Board is able to set levies on tea exports (up to 1 per cent) and tea imports (fixed at 100 per cent), all this demonstrating the highly protectionist position of the Tea Act.11 The Tea Board can use funds from the tea levy for price stabilization as well as research and development,12 but the law does not mention assistance with matters concerning IP. Ownership of IPRs Most forms of IP are private rights and therefore vest in individuals or discrete entities. Although ownership of IPRs typically vests first in the creator/inventor, contractual obligations such as employment agreements often transfer that ownership immediately to entities. Under Kenyan law, in the absence of any contractual provisions to the contrary, the default legal owner of a patent is the employer of an employee inventor. Ownership is important for granting control over the use of the IPRs but it also can be useful for understanding various aspects of the sector, as explored in the sections below.13 Patents—data The Kenya Industrial Property Institute (KIPI) is a relatively active patent office that conducts substantive search and analysis prior to granting patents. Patents granted by KIPI were identified and reviewed.14 In addition, patent applications filed at KIPI but never granted as patents were also identified and reviewed.15 This last category of data is important for two reasons: un-granted applications may still become granted patents if prosecution is ongoing; and even if never granted, patent applications indicate what applicants consider inventive and innovative. Forty-four patents granted by KIPI and relevant to the tea industry were identified through keyword and patent owner searches. Grant dates for the patents ranged from 1995 to 2016. Of the 44 granted patents, the top three countries of owners are India (17 patents), the United Kingdom (UK, 17 patents) and Kenya (6 patents). In India, one government entity was responsible for 14 of the 17 granted patents, while in the UK, one private sector entity was responsible for 16 of the 17 granted patents. A total of 14 separate entities were listed as owning one or more granted patents, for an average of three patents per entity. An additional 13 non-granted patent applications were identified, 12 of which listed Kenyan applicants.16 Patents granted by ARIPO and designating Kenya were also identified and reviewed. Like KIPI, ARIPO conducts substantive search and analysis of patent applications. Thirty-three relevant granted patents were identified, having grant dates ranging from 1988–2017. The top three countries of owners of relevant ARIPO patents were the UK (23 patents), Switzerland (5 patents) and Argentina (2 patents). A total of seven separate entities were listed as owning one or more patents, for an average of five patents per entity. No granted patents listed a Kenyan applicant. Twenty of the patents belonged to a single private sector entity from the UK. An additional eight non-granted patent applications were identified, one of which listed a Kenyan applicant. Patents—analysis The fact that most non-granted applications (at KIPI) have Kenyan owners is consistent with earlier research that has found that Kenyan-owned patent applications advance to grant at a lower rate compared with applications having foreign owners.17 One possible reason for this is that patent applications filed by local applicants are not well drafted.18 For patents and applications with Kenyan owners, 14 (out of a total of 18) listed institutional owners. Although the sample size is low, this is notable as contrasting with previous research, which found that most locally filed patents have individuals as owners.19 This indicates that, unlike other sectors, significant research and development in tea is occurring within institutions, rather than just by individuals. Finally, it is noted that none of the six Kenyan-owned patents had corresponding applications at the Patent Cooperation Treaty (PCT), indicating a heavy focus on the local market by Kenyan applicants. Trade marks—data and analysis Trade marks granted by KIPI were identified and reviewed. The trade mark system is very well developed in Kenya, with over 95,000 records contained in WIPO Global Brands database. From that database, 350 Kenyan trade marks were listed in Class 3020 and explicitly included ‘tea' in the mark itself. Due to the large volume of data and the difficulty of knowing the actual use of a trade mark in practice, this dataset is likely the least reliable of the five varieties of IPR in the current study. Nevertheless, the dataset shows broad ownership of marks. Applications originated from 17 countries led by Kenya (302 entries), the UK (17 entries) and Sri Lanka (11 entries). With 274 separate entities owning trade marks, 229 entities owned just one trade mark, contrasting with the other forms of IPR analysed in this article. Plant variety protection and varietal registration—data and analysis PVP certificate applications and granted PVP certificates originating in Kenya were identified using the PLUTO database, maintained by UPOV. Out of 55 relevant records, 38 are listed as having approved status. Ownership of applications for PVP was highly concentrated, with six separate entities accounting for all 55 applications, for an average of nine applications per entity. Only one of those entities is Kenyan: the Tea Research Foundation of Kenya, a public research institute, owned approximately one-third of the applications. Seeds for a plant variety may not be legally sold in Kenya unless the variety is listed in the Kenyan National Plant Variety List.21 Obtaining this status requires approval by the National Variety Release Committee; approval is based on National Performance Trials (NPT) as well as a test of Distinct, Uniqueness, and Sustainability (DUS). The Kenya Plant Health Inspectorate (KEPHIS) is responsible for maintaining the list and conducting the tests. Sixty-four entries were found for tea varieties, with release dates ranging from 1960 to 2011. Ownership of listed varieties was highly concentrated in Kenyan entities. Apart from one listing belonging to a UK company, the remaining 63 listings belong to just two Kenyan entities (a private company and a public research foundation). Activity in this form of IPR has reduced significantly—90 per cent of the listings have release dates prior to the year 2000. Observations, analysis and conclusions for ownership of IPR Table 1 summarizes ownership statistics. From this data, and the data presented above, three areas require further discussion: a high degree of concentration of IPR ownership; a lack of IPR activity from African countries other than Kenya; and diversity in activity by different types of entities (ie public entities, private entities and individuals). These areas are reviewed below. Table 1 Ownership statisticsa . KE granted patents . KE non-granted patent applications . ARIPO granted patents . Kenyan trademarks . PVP . National plant variety approval . Total entries identified 44 13 33 350 55 64 Number of separate owners 14 11 7 274 6 3 Number held by Kenyan entities 6 (14%) 12 (92%) 0 (0%) 302 (86%) 18 (33%) 63 (98%) Number held by entities from other African countries 0 0 0 5 0 0 Top countries for owners India UK Kenya Kenya India UK Switzerland Argentina Kenya UK Sri Lanka Kenya UK Kenya UK . KE granted patents . KE non-granted patent applications . ARIPO granted patents . Kenyan trademarks . PVP . National plant variety approval . Total entries identified 44 13 33 350 55 64 Number of separate owners 14 11 7 274 6 3 Number held by Kenyan entities 6 (14%) 12 (92%) 0 (0%) 302 (86%) 18 (33%) 63 (98%) Number held by entities from other African countries 0 0 0 5 0 0 Top countries for owners India UK Kenya Kenya India UK Switzerland Argentina Kenya UK Sri Lanka Kenya UK Kenya UK a Efforts were made to identify entities with similar parent companies by searching Internet archives and company webpages, so as not to count such entities separately. Also, where a single entity has multiple affiliates in different countries, IPR belonging to the affiliates were assigned to the parent company. This was not done, however, for trademarks, due to the large number of separate trade mark-owning entities. Open in new tab Table 1 Ownership statisticsa . KE granted patents . KE non-granted patent applications . ARIPO granted patents . Kenyan trademarks . PVP . National plant variety approval . Total entries identified 44 13 33 350 55 64 Number of separate owners 14 11 7 274 6 3 Number held by Kenyan entities 6 (14%) 12 (92%) 0 (0%) 302 (86%) 18 (33%) 63 (98%) Number held by entities from other African countries 0 0 0 5 0 0 Top countries for owners India UK Kenya Kenya India UK Switzerland Argentina Kenya UK Sri Lanka Kenya UK Kenya UK . KE granted patents . KE non-granted patent applications . ARIPO granted patents . Kenyan trademarks . PVP . National plant variety approval . Total entries identified 44 13 33 350 55 64 Number of separate owners 14 11 7 274 6 3 Number held by Kenyan entities 6 (14%) 12 (92%) 0 (0%) 302 (86%) 18 (33%) 63 (98%) Number held by entities from other African countries 0 0 0 5 0 0 Top countries for owners India UK Kenya Kenya India UK Switzerland Argentina Kenya UK Sri Lanka Kenya UK Kenya UK a Efforts were made to identify entities with similar parent companies by searching Internet archives and company webpages, so as not to count such entities separately. Also, where a single entity has multiple affiliates in different countries, IPR belonging to the affiliates were assigned to the parent company. This was not done, however, for trademarks, due to the large number of separate trade mark-owning entities. Open in new tab First, ownership in most forms of IPR is heavily concentrated in a small number of entities. For example, 77 total granted patents were identified in Kenya and ARIPO, and three entities own 75 per cent of those patents, with a single private sector entity owning 36 patents. Kenyan entities owned just 8 per cent of the identified patents. For nationally approved plant varieties, two Kenyan entities own 98 per cent of the varieties. PVP certificates are concentrated in just five separate Kenyan and UK entities. Trade marks are an exception to the concentrated ownership of IPRs—66 per cent of tea-related trade marks in Kenya are owned by entities that owned only a single trade mark. Secondly, the near complete lack of use of Kenyan IPR by entities in other countries within Africa is noteworthy. Apart from Kenya, no other African country was listed among the owners of Kenyan patents, ARIPO patents, PVP applications or entries on the National Plant Variety List. A few trade marks are owned by entities in Egypt (one trade mark), Mauritius (two trade marks) and Uganda (two trade marks). This is interesting, considering that seven of the top 20 global tea producing nations are in Africa, including all five of the countries in the East African Community.22 Thirdly, there is noteworthy variation in the use of IPR systems by different types of entities. Public sector innovation in the Kenyan tea sector is led by the Tea Research Institute (TRI), an institute established within the Kenya Agriculture and Livestock Research Organization (KALRO).23 TRI is the applicant for three pending patent applications, but no granted patents.24 The precursor of TRI was the Tea Research Foundation of Kenya, which is listed as the owner of 36 of the 64 varieties on the National Varieties List, as well as 18 PVP certificates. In addition, public universities are listed as applicants for seven of the 13 ungranted patent applications at KIPI. These data show that the public sector is carrying out a relatively active role in Research & Development in the sector. Private sector entities are also very active in acquiring IPRs. Both foreign and local entities are engaged, and in some cases own multiple forms of IPR. The majority of Kenyan entities participating in acquisition of IPR do so in a very targeted manner—focusing on trade marks, plant variety approval or a single technology patent. Nevertheless, the data support the conclusion that there is active participation in the Kenyan IPR systems by both foreign and local entities. Individuals are also actively engaging with IPR systems, but with less variety of engagement: overwhelmingly, individuals are owners of trade marks. Furthermore, it is worth considering the desirability of seeking IPRs from the perspective of smallholder farmers. A recent study25 on innovating smallholder farmers and IPR found that over half (55 per cent) of farmers in the study (which included farmers from Kenya, Zambia and Malawi) had never heard of IPRs. The same study found that most farmers (79 per cent of those in the study) ‘would prefer to share their innovations freely with fellow farmers and stakeholders, while 21% of them would prefer to pursue IPR protection’. The authors of the study conclude that smallholder farmers ‘are generally willing to relinquish their IPRs in favour of open dissemination’. 26 This result might be different from a sample of farmers with more prior exposure to IPRs—a conclusion that was reached in another study on IPR usage by agro-food processors in Kenya.27 Technologies in the tea industry The agricultural sector comprises a variety of business activities, including business-to-business and business-to-customer transactions, many of which have been the target of technological innovations in recent years. Innovation in agriculture is important for a variety of reasons, including adapting to changes in climate that affect the viability of crops and sustainability of crop markets. As described in the previous section, local research and development in the tea sector is fairly minimal if measured solely by the number of gr anted patents. Previous studies have shown, however, that granted patents are a poor indicator of innovation in the Global South.28 While not refuting this conclusion, the present study looked to patent activity as informative for at least two reasons. First, patents have a disclosure requirement, thereby allowing a detailed understanding of the innovations that occurred. Secondly, patents reveal inventors and applicants, thereby allowing an analysis of activity by local innovators. To understand more about innovation in the tea sector, therefore, the subject matter of patents (granted and ungranted applications, where available) was reviewed. The subject matter of the patents in Kenya and ARIPO fall into a variety of categories, as shown in Table 2. The diversity of inventions is greater for Kenyan patents and applications, where subject matter ranged from the raw materials (plants and the growing process) through the final marketable product and market access. In contrast, subject matter for ARIPO patents was concentrated towards the middle of the tea production chain. Table 2 Subject matter of patentsa Primary subject matter . KE granted patents . KE un-granted applications . ARIPO granted patents . ARIPO un-granted applications . Improved Tea plants 3 1 0 1 Methods for growing plants 6 1 0 0 Methods or apparatus for harvesting tea leaves 1 0 1 1 Methods or apparatus for processing harvested leaves 21 6 19 2 Methods of drink production; the resulting product/formulation 10 3 8 4 Packaging 3 0 0 0 Market access 0 1b 0 0 Waste usage 0 1 0 0 Primary subject matter . KE granted patents . KE un-granted applications . ARIPO granted patents . ARIPO un-granted applications . Improved Tea plants 3 1 0 1 Methods for growing plants 6 1 0 0 Methods or apparatus for harvesting tea leaves 1 0 1 1 Methods or apparatus for processing harvested leaves 21 6 19 2 Methods of drink production; the resulting product/formulation 10 3 8 4 Packaging 3 0 0 0 Market access 0 1b 0 0 Waste usage 0 1 0 0 a As determined from generalizing the abstract of the patent. It is appreciated that claims may be directed to a variety of inventions in any given patent. b KE patent application KE/P/2008/787 identifies two inventions—a black tea quality predictive technology and a market access technology. It is classified here as directed to market access. Open in new tab Table 2 Subject matter of patentsa Primary subject matter . KE granted patents . KE un-granted applications . ARIPO granted patents . ARIPO un-granted applications . Improved Tea plants 3 1 0 1 Methods for growing plants 6 1 0 0 Methods or apparatus for harvesting tea leaves 1 0 1 1 Methods or apparatus for processing harvested leaves 21 6 19 2 Methods of drink production; the resulting product/formulation 10 3 8 4 Packaging 3 0 0 0 Market access 0 1b 0 0 Waste usage 0 1 0 0 Primary subject matter . KE granted patents . KE un-granted applications . ARIPO granted patents . ARIPO un-granted applications . Improved Tea plants 3 1 0 1 Methods for growing plants 6 1 0 0 Methods or apparatus for harvesting tea leaves 1 0 1 1 Methods or apparatus for processing harvested leaves 21 6 19 2 Methods of drink production; the resulting product/formulation 10 3 8 4 Packaging 3 0 0 0 Market access 0 1b 0 0 Waste usage 0 1 0 0 a As determined from generalizing the abstract of the patent. It is appreciated that claims may be directed to a variety of inventions in any given patent. b KE patent application KE/P/2008/787 identifies two inventions—a black tea quality predictive technology and a market access technology. It is classified here as directed to market access. Open in new tab Kenyan law does not allow patenting of plant varieties, which receive protection through PVP. As indicated in prior research, however, plant patents are possible under Kenyan law, provided that the claims are not directed to a single plant variety.29 In the Kenyan tea sector, three granted patents are directed to various aspects of improving tea plants through genetic manipulation. Six granted patents are directed to methods of growing tea plants and one is directed at an improved method of harvesting tea. These seven patents, along with the three patents directed to improved plants, cover aspects of the tea sector that must occur within the country, whereas the remaining 34 granted patents cover aspects of tea production that could be done outside of Kenya, with exported bulk tea leaves. The majority of such patents are directed to methods of processing tea leaves, including processing whole fresh leaves as well as dried leaves, with both wet and dry processes. Efforts have been made within recent years, by various tea sector entities, to increase the quantity and quality of post-harvest processing that is carried out within the country on tea products.30 Nevertheless, a substantial amount of Kenyan tea is still exported as bulk leaves. Certain patents demonstrate that technologies are being developed with consideration of the context in which the tea is processed. For example, one patent from an Indian entity is directed to a ‘simple, convenient tea leaf roaster … comprising of [a] roasting tank provided with a heating jacket and an agitator operated manually or by motor’.31 On the other hand, advanced forms of technology are also found in tea patents, such as a patent application directed to ‘Low temperature plasma processed tea’.32 Notwithstanding that data-driven farming, as well as farming practices resilient to climate change, are recognized as critical to the further development of agriculture in Africa,33,34 none of the patents identified in Kenya and ARIPO is directed to any aspect of precision agriculture or to climate smart agriculture. Numerous projects are ongoing in these areas, but the technologies developed in such projects are not engaging formal, local IPR systems.35 Subject matters from the six Kenyan-owned granted patents and the 14 ungranted patent applications (13 at KIPI and one at ARIPO) are shown in Table 3. Table 3 Subject matter of Kenyan-owned granted patents and Kenyan-owned non-granted patent applications General subject matter . Specific invention (as per Abstract or Title) a . Packaging A multilayered tea packaging container in the form of a [sack] defined by an open top. A sack for loose filling material, having a split open top. Leaf processing A process for the consistent commercial production of high catechin content unblended specialty black tea. A simple method and a line for a means of effective fibre removal, from ex-drier teas and presorting for effective removal of fibre and large balls from the black tea. A combined inline fibre extracting and grading machine for grading tea or other products without an intermediate conveyor or conveyors between the two machines. An improved process of drying green tea based on steaming, pre-drying stage followed by maceration and final drying carried out sequentially in a single chamber or up-scaled chambers. Water extraction of catechins from green tea leaf. Tea sorting machine [with] PVC Roller. Green tea leaf low temperature nitrogen plasma withering process. Improved process and technology for pre-drying green leaf tea. Low temperature plasma processed tea. Mechanical tea de-stalker. Methods for growing plants Tea grade fertilizer Tea Plants Process of optimum production of high catech in black tea Waste use Method and apparatus for biogas production from tea plants. Product or formulation Green tea extract—water soluble powder, cosmetics grade. Process of beer fortification using tea. Purple tea extract-water soluble powder, pharmaceutical and cosmetic grade. Market access Predictive black tea quality technology and method for market access of commercial black tea via the internet. General subject matter . Specific invention (as per Abstract or Title) a . Packaging A multilayered tea packaging container in the form of a [sack] defined by an open top. A sack for loose filling material, having a split open top. Leaf processing A process for the consistent commercial production of high catechin content unblended specialty black tea. A simple method and a line for a means of effective fibre removal, from ex-drier teas and presorting for effective removal of fibre and large balls from the black tea. A combined inline fibre extracting and grading machine for grading tea or other products without an intermediate conveyor or conveyors between the two machines. An improved process of drying green tea based on steaming, pre-drying stage followed by maceration and final drying carried out sequentially in a single chamber or up-scaled chambers. Water extraction of catechins from green tea leaf. Tea sorting machine [with] PVC Roller. Green tea leaf low temperature nitrogen plasma withering process. Improved process and technology for pre-drying green leaf tea. Low temperature plasma processed tea. Mechanical tea de-stalker. Methods for growing plants Tea grade fertilizer Tea Plants Process of optimum production of high catech in black tea Waste use Method and apparatus for biogas production from tea plants. Product or formulation Green tea extract—water soluble powder, cosmetics grade. Process of beer fortification using tea. Purple tea extract-water soluble powder, pharmaceutical and cosmetic grade. Market access Predictive black tea quality technology and method for market access of commercial black tea via the internet. a Abstracts and Titles are paraphrased for clarity and brevity. Separate patents titles or abstracts are are indicated in seperate row Open in new tab Table 3 Subject matter of Kenyan-owned granted patents and Kenyan-owned non-granted patent applications General subject matter . Specific invention (as per Abstract or Title) a . Packaging A multilayered tea packaging container in the form of a [sack] defined by an open top. A sack for loose filling material, having a split open top. Leaf processing A process for the consistent commercial production of high catechin content unblended specialty black tea. A simple method and a line for a means of effective fibre removal, from ex-drier teas and presorting for effective removal of fibre and large balls from the black tea. A combined inline fibre extracting and grading machine for grading tea or other products without an intermediate conveyor or conveyors between the two machines. An improved process of drying green tea based on steaming, pre-drying stage followed by maceration and final drying carried out sequentially in a single chamber or up-scaled chambers. Water extraction of catechins from green tea leaf. Tea sorting machine [with] PVC Roller. Green tea leaf low temperature nitrogen plasma withering process. Improved process and technology for pre-drying green leaf tea. Low temperature plasma processed tea. Mechanical tea de-stalker. Methods for growing plants Tea grade fertilizer Tea Plants Process of optimum production of high catech in black tea Waste use Method and apparatus for biogas production from tea plants. Product or formulation Green tea extract—water soluble powder, cosmetics grade. Process of beer fortification using tea. Purple tea extract-water soluble powder, pharmaceutical and cosmetic grade. Market access Predictive black tea quality technology and method for market access of commercial black tea via the internet. General subject matter . Specific invention (as per Abstract or Title) a . Packaging A multilayered tea packaging container in the form of a [sack] defined by an open top. A sack for loose filling material, having a split open top. Leaf processing A process for the consistent commercial production of high catechin content unblended specialty black tea. A simple method and a line for a means of effective fibre removal, from ex-drier teas and presorting for effective removal of fibre and large balls from the black tea. A combined inline fibre extracting and grading machine for grading tea or other products without an intermediate conveyor or conveyors between the two machines. An improved process of drying green tea based on steaming, pre-drying stage followed by maceration and final drying carried out sequentially in a single chamber or up-scaled chambers. Water extraction of catechins from green tea leaf. Tea sorting machine [with] PVC Roller. Green tea leaf low temperature nitrogen plasma withering process. Improved process and technology for pre-drying green leaf tea. Low temperature plasma processed tea. Mechanical tea de-stalker. Methods for growing plants Tea grade fertilizer Tea Plants Process of optimum production of high catech in black tea Waste use Method and apparatus for biogas production from tea plants. Product or formulation Green tea extract—water soluble powder, cosmetics grade. Process of beer fortification using tea. Purple tea extract-water soluble powder, pharmaceutical and cosmetic grade. Market access Predictive black tea quality technology and method for market access of commercial black tea via the internet. a Abstracts and Titles are paraphrased for clarity and brevity. Separate patents titles or abstracts are are indicated in seperate row Open in new tab The data on Kenyan and ARIPO patents are consistent and support a conclusion about foreign and domestic markets. Local entities are more heavily focused on the local market, which includes all aspects of the tea value chain. Local innovation is occurring in plant growing, harvesting, processing, packaging, distribution and consumption. This is also supported by the very large number of locally filed trade marks, indicating a significant amount of activity by local entities in the tea sector. In contrast, major international companies are less (or not at all) interested in the local market of tea consumption and are focused entirely on production and exportation of black tea. This situation—strong exports as well as an active domestic market served by local entities—is one indicator of health in the sector. Trends in IPR in Kenyan tea Figures 1–4 provide data of the rate of acquisition or release for four types of IPR over time. The data indicate that the rate of acquisition of IPRs is mixed. Figure 1 Open in new tabDownload slide Number of patents filed and granted at KIPI by year. Figure 1 Open in new tabDownload slide Number of patents filed and granted at KIPI by year. Figure 2 Open in new tabDownload slide Number of patents filed and granted at ARIPO by year. Figure 2 Open in new tabDownload slide Number of patents filed and granted at ARIPO by year. Figure 3 Open in new tabDownload slide Number of tea varieties released through KEPHIS by year. Figure 3 Open in new tabDownload slide Number of tea varieties released through KEPHIS by year. Figure 4 Open in new tabDownload slide Number of trademarks published at KIPI by year. Figure 4 Open in new tabDownload slide Number of trademarks published at KIPI by year. Acquisition of IPRs to cover technological advancements in tea has overall declined over the past decade. The rate of patenting at KIPI has slowed considerably, if only granted patents are considered. Although ARIPO granted an increased number of patents in the years 2015–2017, the rate of applications at ARIPO has also slowed considerably.36 Furthermore, KEPHIS has essentially stopped releasing approved tea plant varieties, with the last release occurring in 2011. See Figures 1–3. The situation for trade marks is markedly different. The general trend for newly published tea-related trade mark applications has been relatively steady, notwithstanding a significant spike in the number of publications in 2011. See Fig. 4. The trends shown in the data are unclear until viewed through the following historical perspective. Under the colonial government, tea growing was restricted to large-scale farms, which ensured that control of the sector remained with UK-based companies. At the point of independence in 1963, smallholder farms accounted for 311,980 kilograms out of 18.08 million kilograms (less than 2 per cent by weight) of tea grown in Kenya.37 Accordingly, the vast majority of tea production was controlled at independence by non-Kenyan entities. It is unsurprising, then, that most of the IPR obtained in the decades after independence belonged to foreign-owned entities. Nevertheless, change was underway: the percentage of tea grown on smallholder farms grew steadily over the decades after independence, surpassing 60 per cent by weight by the year 2000,38 and remaining above 60 per cent by weight well past 2010.39 As with production, a similar pattern is seen in the transition from largely foreign-owned IPR to a larger percentage of locally owned IPR. Patents and trade marks are prime examples of this shift. Kenya did not have a dedicated industrial property office until 1990. Prior to that time, patents were granted in Kenya only for corresponding UK-granted patents. Patents were therefore available only to those with access to the UK patent system, thereby heavily disadvantaging local inventors.40 The first locally owned patent application occurred in 1999 and, over the ensuing 16 years, filings by local entities remained steady or increased. See Fig. 5, which shows patent applications at KIPI that have not proceeded to grant.41 This data contrasts with the situation for granted patents (Fig. 1), but helps to provide a more complete picture of research and development in the tea sector. Figure 5 Open in new tabDownload slide Number of un-granted patent applications at KIPI with Kenyan owners, by year. Figure 5 Open in new tabDownload slide Number of un-granted patent applications at KIPI with Kenyan owners, by year. A similar shift has occurred in trade marks. The WIPO Global Brands Database contains trade marks filed at KIPI between 1959 and early 2018. As shown in Table 4, there is a clear trend that Kenyan entities are responsible for an increasing share of trade mark applications related to tea.42 Whereas more than one-third of applications were foreign-owned in the period prior to 2000, over 95 per cent of applications in the past decade are by Kenyan entities, and the total number of applications has increased substantially. Table 4 Trade marks filed at KIPI . 1959–1999 . 2000–2009 . 2010–2018 . Total applications 47 88 217 Applications with Kenya as country of the owning entity 29 (62%) 70 (73%) 206 (95%) . 1959–1999 . 2000–2009 . 2010–2018 . Total applications 47 88 217 Applications with Kenya as country of the owning entity 29 (62%) 70 (73%) 206 (95%) Open in new tab Table 4 Trade marks filed at KIPI . 1959–1999 . 2000–2009 . 2010–2018 . Total applications 47 88 217 Applications with Kenya as country of the owning entity 29 (62%) 70 (73%) 206 (95%) . 1959–1999 . 2000–2009 . 2010–2018 . Total applications 47 88 217 Applications with Kenya as country of the owning entity 29 (62%) 70 (73%) 206 (95%) Open in new tab In summary, a review of trends in IPR filings and acquisition shows that Kenya-based entities have been steadily increasing their rate of participation in some forms of IPR (particularly patents and trade marks), whereas participation in other forms of IPR has slowed (particularly plant variety approval and protection). Unfortunately, a relatively large percentage of patent filings from Kenya-based entities remain un-granted; further research would serve to understand the reasons for this. Geographic indications An analysis of IPR in the Kenyan tea sector is incomplete without mentioning GIs. Kenyan law does not recognize this form of IPR, and Kenya is not a member of the Lisbon Agreement for the Protection of Appellations of Origin. Numerous attempts have been made to pass a law covering GIs but, for the time being, Kenya follows the US approach of protecting geographical factors through trade marks (including certification marks).43 Nevertheless, GIs may have potential for improving the share of value addition that is realized by Kenyan producers,44 and numerous GIs already exist throughout the continent.45 Perhaps recognizing this, the Government of Kenya has used trade marks (registering ‘Coffee Kenya, So Rich So Kenya’) in the coffee sector, in an effort to distinguish Kenyan coffee on the global market.46 Several factors are relevant in determining whether a formal system for protecting GIs would benefit local producers in any given sector.47 In the case of Kenya’s tea sector and, as explained below, agricultural and economic factors both point to a situation that may be ideal for GIs, whereas cost- and gender-specific impacts present challenges that must be considered. Looking first at agricultural factors, many varieties of tea are grown in Kenya—for example, different varieties tend to be grown to the east of the Rift Valley compared with farms to the west of the Rift Valley.48 This, along with differences in growing conditions and other factors, results in differing quality (and different prices) for teas grown in different regions of Kenya. Furthermore, there is a recent trend in tea-growing regions of Kenya toward organic agriculture (OA). OA tends to be geographically clustered,49 thereby further distinguishing products from specific geographic areas. Recognizing such geographic variance, regional stakeholders have expressed an interest in using GIs to distinguish tea grown in the different countries of the East African Community.50 The agricultural situation for tea is therefore ideal for the use of GIs. Economic factors also indicate that, on balance, GIs may be favourable to local IPR owners. As indicated, the majority of tea is now grown on smallholding farms, and the majority of current trademarks are granted to small, local entities. A large number of users of GIs would therefore likely be local smallholder farmers. It is precisely such users that are best served by a GI system, as a GI system helps growers to differentiate their product from other local and international products. Furthermore, compared with the current trade mark system, the costs of establishing and enforcing protection in a GI system can be distributed across many stakeholders, including individual growers, corporations and the government. The GI system is therefore favourable to less resource-endowed producers.51 Notwithstanding the agricultural and economic factors that seem to favour a GI system, other factors have been identified as favouring the status quo. In particular, at least one study has concluded that collective branding schemes are more favourable toward women agro-product producers compared with potential GI systems.52 The study notes the cost of creating and operating a GI system, the difficulty for farmers (especially women) to demonstrate that an agricultural product actually originates from a specific region, and the low likelihood that a low-income country could influence international GI frameworks. These factors cannot be ignored in a resource-constrained environment. Conclusions The Kenyan tea sector is important both economically and culturally and has a history that reaches well into the colonial period. The array of formal IPRs in the sector is both wide and deep relative to other sectors, but the number of existing (or expired) rights is only one measure of the vitality of the sector. Most IPRs are highly concentrated, with a small number of non-Kenyan entities as owners. The exception is trade marks, of which the majority are vested in Kenyan entities owning no other form of formal IPR. In addition, trends indicate a gradual shift for IPR applications toward Kenyan ownership. This sectoral review of the use of IPR is important for a pair of complementary reasons. Although it is the most important agricultural cash crop in Kenya, there is vast untapped economic potential. Most tea is exported from Kenya after primary processing (ie as bulk, dried tea); it is estimated that only 10 per cent of the value added to consumable tea products is captured by local farmers, with the remaining 90 per cent captured by foreign companies.53 Secondly, ownership and use of IPR has helped upstream participants in the global coffee sector capture a larger share of the overall value in the market.54 This observed effect would presumably also occur in the tea sector, and the shift of IPR ownership described in this article indicates an interest by tea sector participants in exploring this approach. Finally, although tea is not an indigenous crop in the region, through 100+ years of cultivation it is possible that significant informal practices have developed and that such practices may or may not be well documented.55 Accordingly, future work should be done to elucidate the extent of informal innovation that exists in the sector. Footnotes 1 World Intellectual Property Organization (WIPO), ‘Intangible Capital in Global Value Chains’ (2017) Report, Publication No 944, Geneva accessed 1 February 2021. 2 World Intellectual Property Organization (WIPO), ‘How the Private and the Public Sectors Use Intellectual Property to Enhance Agricultural Productivity’ (2011) Global Challenges Report, Publication No 1027, Geneva < https://www.wipo.int/edocs/pubdocs/en/global_challenges/1027/wipo_pub_1027.pdf > last accessed 2 December 2020. 3 C Jewell, ‘Who Benefits from IP Rights in Agricultural Innovation?’ (August 2015) WIPO Magazine < https://www.wipo.int/wipo_magazine/en/2015/04/article_0003.html> last accessed 2 December, 2020. 4 World Bank Data, from the World Integrated Trade Solution database. < https://wits.worldbank.org/CountryProfile/en/Country/KEN/Year/LTST/Summary > last accessed 2 December 2020. 5 I Rutenberg, M Ouma and P Munyi, ‘Intellectual Property Law in Kenya’, in H Vanhees and A aan den Rijn (eds), International Encyclopaedia of Laws: Intellectual Property (Kluwer Law International 2019). 6 See, generally, the following acts: Industrial Property Act 2001, Copyright Act 2001, Trade Marks Act 1957, Seeds and Plant Varieties Act 1972. 7 J Omolo, ‘Criminal Procedures and Penalties for Infringement of Intellectual Property Rights in Kenya’ (2018) 13(8) Journal of Intellectual Property Law & Practice 649–56. 8 E Bergman, A de Groot Ruiz and V Fobelets, ‘The True Price of Tea from Kenya’ (2016) Report, IDH and True Price < https://trueprice.org/wp-content/uploads/2016/04/TP-Tea.pdf > last accessed 8 February 2021. 9 Tea Act 2020, s 27. 10 Tea Act 2020, s 21 et seq.; see also E Bergman, A de Groot Ruiz and V Fobelets, ‘The True Price of Tea from Kenya’ (2016) Report, IDH and True Price < https://trueprice.org/wp-content/uploads/2016/04/TP-Tea.pdf > last accessed 8 February 2021. 11 Tea Act 2020, s 53. 12 Tea Act 2020, s 54. 13 Ownership was determined strictly from online records and does not account for post-filing changes of ownership through licensing or other mechanisms. Post-filing transfers of ownership are not consistently registered in Kenya; the small number of available records may therefore be misleading. 14 Utility model certificates are also granted by KIPI. A search of UMCs granted through 2016 revealed no relevant utility model certificates. 15 Patent application data were obtained through direct communication with KIPI officials for applications filed at KIPI between 1992 and 2016. 16 Although it is possible that some applications may still be pending and may still proceed to grant, this seems unlikely for most of the applications. The applications are not recent—nine have filing dates of 2013 or earlier, and three were filed in 2015. 17 I Rutenberg and J Mwangi, ‘Do Patents and Utility Model Certificates Encourage Innovation in Kenya?’ (2017) 12(3) Journal of Intellectual Property Law & Practice 206–15. 18 I Rutenberg and L Makanga, ‘Utility Model Protection in Kenya: The Case for Substantive Examination’ (2016) 19 African Journal of Information and Communication 19–37. 19 Rutenberg and Mwangi (n 17). 20 This class includes foodstuffs of plant origin, including coffee, tea, etc. 21 Although listing on the National Plant Variety List is not traditionally considered a form of IPR, it is included here as it shares many of the same characteristics with other forms of IPR. 22 A Chen ‘The World’s Top Tea-Producing Countries’ (WorldAtlas, 17 September 2020) last accessed 2 December, 2020. 23 Established in 2013, TRI seeks to equip tea farmers with tools and sustainable tea technology. See: S Kamunya et al, ‘Tea Growers Guide’ (28 February 2019), Kenya Agricultural & Livestock Research Organization, last accessed 18 August 2020. 24 KIPI patent application data was searched through 2016, granted patents were searched through 2019. Data was received directly from KIPI. 25 J Tambo et al, ‘Copyright or Copyleft: An Assessment of Farmer-Innovators’ Attitudes Towards Intellectual Property Rights’ (2020) 74 Journal of Rural Studies 133. 26 ibid. 27 D Omillo and L Okubo, ‘Does Intellectual Property Protection Bring Advantage to Innovators and Consumers? Perceptions of Kenyan Small Agro-Food Processors’ (2018) 8(1) ILIRIA International Review. 28 N Rizk et al, ‘Towards an Alternative Assessment of Innovation in Africa’ (2018) openAIR Working Paper 10, 16, 19,< https://openair.africa/wp-content/uploads/2020/05/WP-10-Towards-an-Alternative-Assessment-of-Innovation-in-Africa.pdf> last accessed 2 December 2020. 29 V Nzomo and I Rutenberg, ‘Patenting the Unpatentable: Lessons for African Patent Systems from a Review of Patent Subject Matter Exclusions in Kenya’ (2017) 5 South African Intellectual Property Law Journal 58–74. 30 Kamunya et al (n 23). 31 Granted patent KE00324. 32 Patent application KE/P/2011/1436. 33 M Tsan et al, ‘The Digitalisation of African Agriculture Report, 2018–2019’ (2019) Wageningen: CTA < www.cta.int/en/digitalisation-agriculture-africa> last accessed 2 February 2021. 34 C Makate, ‘Effective Scaling of Climate Smart Agriculture Innovations in African Smallholder Agriculture: A Review of Approaches, Policy and Institutional Strategy Needs’ (2019) 96 Environmental Science & Policy 37–51. 35 Tsan et al (n 33). The report identifies donor-driven development as a primary source of innovation in data-driven farming, which may explain why such projects do not result in significant IPR activity. 36 This does not appear to be an artifact of the lag between application and grant. ARIPO’s database is reported to be inclusive through the end of 2019, and includes pending applications, yet no documents had a filing date past 2015. 37 Christian Partners Development Agency, ‘Report on small-scale tea sector in Kenya’ (Nairobi, March 2008) < https://www.somo.nl/wp-content/uploads/2008/03/Report-on-Small-Scale-Tea-Sector-in-Kenya.pdf > last accessed 2 December 2020. 38 ibid. 39 J Ateka, P Onono and M Etyang, ‘Technical Efficiency and its Determinants in Smallholder Tea Production: Evidence fromNyamira and Bomet Counties in Kenya’ (2018) 18(3) Global Journal of Science Frontier Research: D Agriculture and Veterinary 43–54. 40 P Kameri-Mbote, ‘Intellectual Property Protection in Africa: An Assessment of the Status of Laws, Research and Policy Analysis on Intellectual Property Rights in Kenya’ (2005) International Environmental Law Research Centre Working Paper 2/2005 < http://ielrc.org/Content/w0502.pdf > last accessed 2 December 2020. 41 Data obtained directly from KIPI, although no data past 2016 was available. 42 Affiliations of the various entities could not be determined, although spot checks of the data indicated a large number of local companies not affiliated with international companies. 43 This has resulted in the granting of numerous trademarks, to private entities, with geographical references. For example, trademarks have been granted with references to Tinderet, Kericho, Meru, and other tea-growing locations. 44 F Maina et al, ‘Intellectual Property and Agricultural Trade; Producer PERCEPTIONS of Tea and Coffee as Potential Geographical Indications’ (2018) 3(1) Open Agriculture 586–95. 45 F Maina et al, ‘Producers' valuation of geographical indications-related attributes of agri-food products from semi-arid lands in Kenya’ (2019) 5(2) Heliyon e01218. 46 D Barjolle et al, ‘The Role of the State for Geographical Indications of Coffee: Case Studies from Colombia and Kenya’ (2017) 98 World Development 105–19. 47 E Ekong, ‘Gender Implications of Geographical Indications for Ghanaian Shea Butter’ (2019) Policy Briefing, Center for International Governance Innovation, and South African Institute of International Affairs, < https://media.africaportal.org/documents/Ekong__Gender_implication_of_geographical_indication_for_Ghanaian_shea_butter.pdf > last accessed 14 January 2021. 48 N Tanui, ‘’Blame Your Tea For Low Pay,’ South Rift Farmers Told’ The Standard Online (Nairobi, September 18 2016) last accessed 2 December 2020. 49 R Gikunda et al, ‘Spatial Trends and Distribution Patterns of Organic Crop Production in Central Kenya’ (2020) 9(1) American Journal of Geographic Information System 23–32. 50 Kenya Association of Manufacturers ‘Intellectual Property Rights Regime Within the East African Community’ (2017, Report) < https://www.aca.go.ke/images/downloads/publications/Intellectual-Property-Rights-Regine-Within-the-East-African-Community.pdf > last accessed 8 February 2021. 51 F Maina et al, ‘Producers' Valuation of Geographical Indications-related Attributes of Agri-food Products from Semi-arid Lands in Kenya’ (2019) 5(2) Heliyon e01218. 52 Ekong (n 47). 53 E Bergman, A de Groot Ruiz and V Fobelets, ‘The True Price of Tea from Kenya,’ (2016) Report, IDH and True Price, < https://trueprice.org/wp-content/uploads/2016/04/TP-Tea.pdf > last accessed 8 February 2021. 54 World Intellectual Property Organization (WIPO), ‘Intangible Capital in Global Value Chains’ (2017) Report, Publication No 944, Geneva < https://www.wipo.int/edocs/pubdocs/en/wipo_pub_944_2017.pdf > last accessed 1 February 2021. 55 This was noted in Kenyan agricultural generally; see, eg, A Krishnan and C Foster, ‘A Quantitative Approach to Innovation in Agricultural Value Chains: Evidence from Kenyan Horticulture’ (2018) 30 European Journal of Development and Research 108–35. © The Author(s) 2021. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - A critical review of intellectual property rights in the Kenyan tea sector JF - Journal of Intellectual Property Law & Practice DO - 10.1093/jiplp/jpab055 DA - 2021-04-11 UR - https://www.deepdyve.com/lp/oxford-university-press/a-critical-review-of-intellectual-property-rights-in-the-kenyan-tea-KwyIunX5qy SP - 1 EP - 1 VL - Advance Article IS - DP - DeepDyve ER -