By Kampala Associated Advocates
The hype around the herbal concoction Covidex, which is being used as a herbal concoction for the treatment or management of COVID19 is facing some headwinds caused by a public contest around the ownership of the Herbal concoction.
Whereas from the very beginning, the ‘invention’ as it may, was being attributed to a one Prof. Patrick Ogwang, a Researcher teaching at MUST, the University has in a statement attributed to it, laid an ownership claim to the same herbal concoction/ invention.
This raises many questions in the public around the veracity of the contradictory claims and could potentially affect the, production, distribution, use and ultimately cause concerns of public safety as the question of quality controls and standards will become inevitable.
From a legal perspective however, the one key issue revolves around the question of the Intellectual Property (IP) protection that each of the aforementioned parties may have or enjoy in relation to the ‘invention’. There are definitely different types of IP that apply here.
The first is in the name COVIDEX. While it has now acquired a unique identity in Uganda, the question of whether the same was registered by either of the parties remains unknown.
In Uganda, trademarks are only protected after registration in accordance with the law by URSB. The party who may have registered the name COVIDEX would to that extent enjoy the exclusive right in Uganda to the use and exploitation of the COVIDEX Trademark for the herbal ‘invention’. That would also make it unlawful for any other party to use the same name in Uganda.
Legally, any legal owner of a Trademark, reserves the right to stop any other party from making, distributing or selling any infringing product using the registered Trademark. Courts & URSB have mechanisms for enforcement of Trademarks infringement.
The second IP right is the Patent. A patent means the title granted to an Inventor in order to protect an invention & just like a Trademark, permits their holder to exercise a monopoly on the use & exploitation of the Invention for a specified period of time.
Just like a Trademark, the right to a patent belongs to the inventor who has registered the same with URSB and whose name will be indicated on the application and patent. There are however standard parameters that have to be satisfied before a patent is granted.
While we don’t have the full facts regarding the nature of the ‘invention’ so as to share a view on its ‘patentability’, we do wish to focus more on the context of the relationship between Mbarara University of Science & Technology and Prof. Patrick Ogwang & its effect on the question of the COVIDEX ownership.
Under normal circumstances, the University Research and Intellectual Property Policy would be an ideal place to start the discussion.
In addition, the Industrial Property Act, 2014 offers guidance on how such can be approached & could come into issue if this issue is not resolved. Under the above Statute, in the absence of a contract to the contrary, the right to a patent for an invention made in execution of a contract of employment, belongs to the Employer (in this case MUST).
This protection is however subject to the registration requirements. Under the statute however, where the invention is of exceptional importance (Such as the current use in COVID19 treatment) the employee has a right to equitable remuneration taking into consideration his or her salary and the benefit derived by the employer from the invention.
However, where an invention is made without any relation to an employment or contract of service and without the use of the employer’s resources, data, means, materials, installations or equipment, such would belong solely to the employee.
It definitely means that the current contestation around the ownership of Covidex can satisfactory be resolved with the aid of the above cited legislative framework within the context of the applicable facts that remain largely unknown currently.
Most importantly however, is the need for Employers & employees alike to streamline the issues around Intellectual Property ownership, especially in research led institutions. Intellectual property is intended to spur and not curtail inventions & having clarity helps all parties.
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