Spencer Silver, a scientist at the American conglomerate 3M, was trying to create a superstrong adhesive in 1968. It wasn’t quite working so well and one result was a low-tack adhesive that could stick to surfaces without leaving residue. Art Fry was a marketing engineer at 3M who loved singing in his church choir. While attending a work seminar, Fry learned about Spencer’s innovation that, while perceived as a weak adhesive, could stick to surfaces without leaving residue. As a choir member, Fry’s hymnal was filled with bookmarks that kept shifting based on what the songs of the day were. He wondered how he could combine the weak adhesive with paper so that he could temporarily stick them on his hymnal without damaging the pages. He developed a small piece of paper that could be easily repositioned and Post-it Notes were born. Following a successful test in 1980 in a few markets, Post-it Notes gained popularity rapidly and eventually became a staple office supply worldwide.

Two 3M employees, in completely separate parts of the business, helped to innovate and create a globally successful and completely ubiquitous product. Spencer’s innovation was accidental, a result of a failed experiment. Fry’s innovation was borne out of irritation from handling multiple bookmarks in his hymnal while undertaking a passionate hobby.  A great invention that was employee-driven. So who owns the intellectual property to that? The weak adhesive with not-so-weak results was consequently protected by 3M through a patent. The legal doctrine of “work for hire” stipulates that any work created by an employee in the course of their employment is owned by the employer. Since Spencer Silver and Art Fry were employees of 3M, their inventions and discoveries made during their employment would typically be considered “work for hire.”

In an increasingly tech-innovative world, software developers are now ubiquitous in most industries as our world becomes undeniably tech-driven. From banking apps that have reduced our need to go to physical bank branches to supermarkets and clothing stores with online shopping options, it goes without saying that many organizations today whether in the private or public sector cannot operate without bumping into the need to provide a tech interface with their stakeholders be they suppliers, customers or beneficiaries. The tech solutions can either be internally generated or externally sourced. Where internally generated, employment contracts should ideally ensure that the “work for hire” doctrine is included for any software developers hired to generate tech solutions.

But what about a cashier at a bank who, in his idle time, likes playing around with artificial intelligence (AI) and its coding capabilities. Having witnessed long lines of tired and frustrated customers, the cashier decides to design a queue management system that can reduce waiting times by addressing customer needs as they stand in line. He is not a software developer so his contract of employment makes no reference to intellectual property ownership.

The Industrial Property Act (IPA) in Kenya became law on July 1, 2001. This legislation was enacted to provide a comprehensive framework for the protection of industrial property rights in Kenya, including patents, utility models, industrial designs, and trademarks. It aimed to enhance the legal framework for intellectual property in the country and align it with international standards. It is an incredibly important piece of legislation particularly during this AI era that now allows even the office cleaner to become a potential innovator in technology, or in modern speak, a technovator. Under Section 94 (a) of the IPA a technovation is defined as an innovation that meets four primary conditions.

Firstly, it must be a solution to a specific problem in the field of technology. The solution must be tangible and not merely a concept. Having a chat to the boss about how it would be nice to have a queue management solution that sorted customer problems using an AI, followed by an hour’s feeble attempt at prompting AI to code does not count as a solution. Secondly, the individual who is the technovator must be an employee of the organization to which the solution is proposed. Not an independent contractor or supplier or a lady walking outside KEMSA waiting for contracts to land on her lap. Thirdly, the solution must be relevant to the organization’s operations. An app suggesting the best times to walk outside KEMSA in order to “angukia” a tender, would not be useful to an insurance company for instance. Finally, the solution should not have been used or actively considered for use by the organization at the date of the proposal. This condition prevents employees from claiming credit for ideas that the company was already pursuing. The IPA’s technovator provisions seek to motivate employees to provide tech solutions to their employers and get both recognized and rewarded for the same. Next week, I will cover what this portends for Kenyan employers in this increasingly digitally creative world.