Patents are intended to stimulate innovation by granting inventors exclusive rights for a limited period. This provides an incentive to invest in new technologies, particularly in fields such as automation, sustainability, and next-generation manufacturing. In practice, however, the opposite can occur. Complex networks of overlapping intellectual property rights create thickets that inventors must navigate before bringing a new product to market. Consequently, the very system designed to reward innovation can end up stifling it.
Kenya’s Vision 2030, now just three years away, envisions the country as having a thriving, globally competitive manufacturing sector. Manufacturing currently contributes around 7% to Kenya’s Gross Domestic Product, yet its role in the nation’s future is far greater than this figure suggests. Realising this vision will depend heavily on innovation, which, in turn, relies on the effective functioning of the patent system.[1]
The risk that the patent system may stifle the very innovation it is intended to protect carries particular weight for Kenya and the wider African continent. Innovation in Africa tends to be need-driven and incremental, concentrating on solving practical, everyday challenges rather than exploring abstract technological frontiers.[2] For Kenyan innovators, the challenge is therefore not only to develop an invention but also to commercialise it without infringing existing patent rights or being excluded by restrictive licensing arrangements.
In this article, we will briefly explore practical pathways that you, as an inventor, might consider when encountering obstacles in commercialising your invention.
Understanding the Barriers: Blocking Patents and Patent Hold-ups.
There are two common barriers you are likely to face when commercialising your new invention namely: blocking patents and patent hold-ups. A blocking patent is one whose claims prevent you from practising follow-on or complementary innovations without a licence. Claims are the elements within a patent that define the scope of an invention. The claims in blocking patents usually overlap with, or cover, the technologies or even processes you need to use.
Patent hold-ups arise when the owner of a patent leverages the fact that the technology covered by the patent has been incorporated into an industry standard to demand supra-competitive licensing terms. This situation arises where standards designate specific patented technologies as essential for implementing interoperable products and services.
While blocking patents prevent you from entering the market without a licence, patent hold-ups affect the terms on which such access is granted. You may face either challenge individually or both simultaneously.
Practical Pathways for navigating Blocking patents and Patent Hold ups.
Addressing these challenges demands different strategic responses. You will have to rely on a range of commercial and legal mechanisms within the patent system to enable lawful commercialisation. These include, cross licensing arrangements, patent pools, engagement with standard setting frameworks governing standard essential patents and in dire cases recourse to compulsory licensing.
1.Cross Licensing
This situation arises when you and another company or individual hold patents that overlap. This means you may be unable to manufacture or sell the product without first obtaining a licence from the other party. Licensing may be granted on a royalty-free basis, involve running royalties, or require fixed fees. Such licensing agreements remain subject to restrictions regarding the field of use, duration, geographical location, and patents issued or pending as of the licence date. At its core, cross-licensing is a contract, and as parties to it, you are free to negotiate and agree upon terms that best suit your respective commercial interests.
Industrial Property Act requires the registration of all licensing contracts with the Kenya Industrial Property Office (KIPI). This registration is not automatic, as the Industrial Property Act specifies a lengthy list of prohibited contractual terms that the Managing Director of KIPI may use to refuse or approve the registration of your licensing agreement. These prohibited terms encompass a wide range of conduct, including: demanding royalty payments disproportionate to the value of the technology; fixing resale prices; extending the contract’s scope to technology not necessary for the primary purpose of the licence; imposing confidentiality obligations beyond the agreement’s expiry among others.[3]
Engaging a qualified patent lawyer, such as myself, to review your agreement before submission is strongly advisable, as failure to register renders the licensing contract invalid.
2. Patent Pools
This is a collaborative arrangement where multiple patent holders agree to license their patents collectively with the aim to streamline technology sharing and reduce costs. Under such a scheme, member patent holders are able to access a broad range of complementary technologies which enhances product development and innovation. In creating these patent pools, the patent owners must first agree to share their patents waiving exclusive rights to facilitate licensing. The owners may choose to create a new entity to act as the licensing vehicle or alternatively appoint one of the member organisations to license all the patents.[4]
The Medicines Patent Pools established by UNITAID is a well-known example where pharmaceutical patent holders have pooled rights to allows generic manufacturers from developing countries to produce affordable medicines. If you are working in the health sector, you should check whether relevant patents are already covered by such a pool before assuming that licensing will be expensive.
3. Standard Essential Patents and Standard Setting Organisations.
Standard Setting Organisations (SSOs) or Standard Development Organisations (SDOs) are voluntary industry associations that set standards for wide adoption in the marketplace. Among these standards are patent policies that in most cases require members to disclose any patent that may be essential to the implementation of an industry standard (SEP). The patent owners may license the patent on either royalty free, fixed price or royalty terms.
In the event that they want to license it at a fixed fee or on payment of royalties, the owner of the SEP is then required to license the technology covered by the patent on fair, reasonable and non-discriminatory (FRAND) terms. However, most standard setting organisations are hesitant to define what FRAND licensing means and have left it to the members to determine that for fear of attracting anti competition liability.[5] Furthermore the organisations rarely do any examination to confirm whether the patent is indeed essential and such determination is usually left to the courts should a dispute arise
What amounts to essential is determined based either on technicality meaning how necessary is the technical aspect be included in a product or commercial feasibility.[6] An example of a such technical standards are 5G, WIFI and Bluetooth for electronics.
Kenya at the moment does not have voluntary standard setting organisations that set standards that in key areas of innovation. Therefore, if you are working with technologies governed by international standards you will need to engage directly with the relevant international body, such as European Telecommunications Standards Institute (ETSI) or Institute of Electrical and Electronics Engineers (IEEE), and review its published patent policy and FRAND commitments before committing to a technology stack
4. Compulsory Licensing
Of all the mechanisms discussed in this article, compulsory licensing is the one you can pursue without needing the cooperation of other patent holders. For that reason, where a blocking patent is the core obstacle and voluntary negotiations have failed, it is worth understanding this route given its difficulty.
This is a mechanism used by governments to grant third parties licenses to make or use a patented product without the consent of the patent holder. It is a last resort measure in instances where the patent holder declines or refuses to grant a license. One of the grounds upon which you can seek a compulsory license includes a situation whereby your patent is dependent on an earlier patent in order for it to function.[7]
Compulsory licenses are notoriously hard to obtain and as an applicant you must demonstrate two things. First, is that you asked the owner of the patent for a contractual licence but have been unable to obtain it on reasonable commercial terms and within a reasonable time. Secondly is that the you guarantee to work the relevant invention sufficiently to remedy the deficiencies or to satisfy the requirements which gave rise to your request. If granted, the owner of the first patent is entitled to a cross license on reasonable terms and the use of the first patent will be unassignable except without your patent.
Which Pathway is Right for You?
Before reaching for any of these mechanisms, it is worth conducting freedom to operate search through KIPI or a registered patent agent to identify which patents, if any, genuinely stands in your way and in which jurisdictions. Once that is established, the appropriate mechanism will depend on your leverage and urgency. If you hold a patent that may be blocking another party that also needs a component covered by your patent, then cross-licensing is your strongest starting position. If you lack such leverage but others are in the same position, a patent pool may be more viable. If the patent is embedded in an industry standard, FRAND obligations may apply. Compulsory licensing should only be considered when all else has failed.
Getting the Patent System Right Is a Development Imperative.
With a population of approximately 1.5 billion people facing broadly similar challenges, Kenyan innovations have the potential to scale across the continent, provided the licensing environment is fair and accessible. Kenya’s manufacturing ambitions will come to nothing if innovators cannot afford to build upon existing technologies. This is therefore not merely a legal issue; it is a development imperative.
As this article has demonstrated, these barriers are not insurmountable. Mechanisms such as cross-licensing, patent pools, standard-setting frameworks governing standard essential patents, and, in limited cases, compulsory licensing provide pathways for navigating existing patent rights and enabling lawful commercialisation. Their effectiveness, however, depends on your ability to identify and strategically utilise them.
On the regulatory front, the Industrial Property Act vests considerable discretionary power in the hands of KIPI. While the prohibited terms under the Act are intended to protect against exploitative arrangements, there is a fine line between safeguarding the market and inadvertently creating different kinds of barriers. An overly restrictive approach to registration risks discouraging the very commercial arrangements that could drive technology transfer and innovation. How KIPI exercises this discretion will shape the environment in which you, as an innovator, operate.
Achieving the ambitions of Vision 2030 will depend not only on fostering innovation but also on enabling innovators to bring their ideas to market within an increasingly complex global patent environment. Engaging KIPI early in your commercialisation journey, and seeking qualified patent counsel where possible, will help you determine which of these tools is most relevant to your circumstances.
[1] Kenya National Bureau of Statistics, Economic Survey 2025, Nairobi Kenya.
[2] Egbetokun et al, ‘Africa’s innovations are overlooked because global measures don’t fit: what needs to change, July 29, 2025, The Conversation. https://theconversation.com/africas-innovations-are-overlooked-because-global-measures-dont-fit-what-needs-to-change-257984
[3] Section 69 of the Industrial Property Act of 2001.
[4] Carl Shapiro, 2001. “Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting,” NBER Chapters, in: Innovation Policy and the Economy, Volume 1, pages 119-150, National Bureau of Economic Research, Inc.
[5] Ibid.
[6] Jorge L. Contreras,2017, “Essentiality and Standards-Essential Patents.” Cambridge Handbook of Technical Standardization Law – Antitrust, Competition and Patent Law
[7] Industrial Property Act of 2001.