Patents
Sanitam Services (E.A) Ltd v Rentokil (K) Ltd & another [2006] KECA 362 (KLR)
Facts
Sanitam invented a foot-operated sanitary disposal bin in 1997, applied for a Kenyan patent in September 1997 and an ARIPO patent (granted as AP773 on 15 October 1999). Rentokil and Kentainers manufactured and sold a similar bin ("SANITACT"); Sanitam sued for infringement.
Issues
Whether the respondents infringed Sanitam's patent; when patent protection commences, from application or from grant; and whether damages or an injunction were warranted.
Rule
Industrial Property Act (Cap 509), ss.35, 36, 39, and especially s.116, which places the burden of proof on the party alleging infringement.
Analysis
The Court held protection arises only from grant (15 October 1999), not the application date; Sanitam failed to prove the respondents' product entered the market only after that date, and the unpublished patent application gave no constructive notice to third parties.
Conclusion
Appeal dismissed but modified — a permanent injunction was granted effective 16 December 1999 (when the patent was first disclosed in amended pleadings) for the life of the patent; damages were refused for lack of proof of post-grant infringement; each party bore its own costs.
Judgement available at kenyalaw.org.