Fight over Covidex

Mistakes Prof. Ogwang, his lawyers, employers shouldn’t make

Kampala, Uganda | IAN KATUSIIME | Prof. Patrick Ogwang, the pharmacist now renowned for the supportive Covid-19 herbal remedy, Covidex, is being challenged by his employer; Mbarara University of Science and Technology (MUST), over the ownership rights.

In June, the National Drug Authority (NDA) approved Covidex as supportive treatment for those suffering from Covid-19.

Covidex was already selling in pharmacies but the NDA endorsement in the midst of the COVID-19 second wave has seen the price of the product rise.  Tension has risen because proceeds from the sales appear to be going to Jena Laboratories Uganda Limited owned by Prof. Ogwang and not his employer; Mbarara University of Science and Technology.

Possibly because of a rift between Prof. Ogwang and his employer, he was not involved or consulted when the university made a request for funding to undertake studies on two other herbal remedies, Jena DS Extra and Artemune.

Ogwang insists the two products were also created by Jena Herbals; a private firm he owns, and that the university is out of line to solicit funding from the government without his permission.

In a letter written by Ogwang’s lawyers on July 9, the pharmacist warned MUST on using two other products created by Jena Laboratories Uganda Limited.

The letter says the contract between MUST and the Ministry of Science and Technology and Innovation (MoSTI) is based on the three products yet Ogwang was not involved or consulted at all.

Ogwang’s letter implied he could be ready for a court battle with the university.

If the university persists in its contract, it “should be ready to be held liable for infringement of the trademarks, patents and all associated intellectual property rights for which Jena Herbals will not hesitate to demand for Shs100 billion for unlawful use of their products,” Ogwang’s lawyer Richard Omongole of Omongole and Company Advocates, said in the letter to MUST Vice Chancellor Prof. Celestine Obua.

The split between Prof. Ogwang and Prof. Obua is a major development because the two have had a close professional working relationship.

Prof. Obua, like Prof. Ogwang, is a highly rated pharmacologist. Prof Obua mentored the team of researchers at MUST in applying for the five year $6million World Bank African Centers of Excellence Phase II (ACE II) fund to support Higher Education in Eastern and Southern Africa. This is where the MUST project called the Pharm-Biotechnology and Traditional Medicine Centre (PHARMBIOTRAC) gets its funding from.

Prof. Obua and Prof. Ogwang are listed among the core team members at PHARMBIOTRAC which is headed by Dr. Casim Umba Tolo.  Ogwang has been the Principal Investigator and Deputy Center Leader of PHARMBIOTRAC.

The stated objectives of PHARMBIOTRAC include creating “capacity in collaboration with the private sector industry for development, production, and commercialisation” of traditional medicines, biopharmaceuticals and nutraceuticals from its research outputs.

Based on this objective, it would appear that PHARMBIOTRAC, the University, and its inventors would have a framework for handling patent rights and other issues arising out of their research.

But according to Anthony Kakooza, an intellectual property lawyer, law lecturer and former law dean at Uganda Christian University (UCU), his casual look at the Mbarara University website in search of an Intellectual Property (IP) policy disappointed him.

“They do not have an IP policy, at least not on their site,” he says.

He adds that although the university has a research policy, that policy does not say anything about intellectual property and neither does its human resource policy.

Kakooza says ordinarily an institution of “Science and Technology” should think about the intellectual property that comes out of them.

Prof. Obua had stirred debate publicly first when in a June 14 letter he said the Mbarara-based University owns covidex and that Ogwang developed it while working there. He also says that Jena Laboratories Uganda Limited, the company owned by Ogwang should stop production of Covidex unless permitted by the university.

But Ogwang’s lawyer, Omongole, questions the ownership claim of the university on the Covidex drug.  He says the inventor did not receive any funding from the university. He says Ogwang only got funding recently from President Yoweri Museveni to support him in regard to the production of Covidex at his Jena Herbals firm.

“How can owner of a patent be asking other people about it? The university does not even know when it (Covidex) was developed,” Omongole said.

Omongole is apparently referring to an exploratory letter seen by The Independent in which Prof. Obua appears to be in a frantic search for information on Covidex.

In the letter Casim Tolo Umba, the PHARMBIOTRAC centre leader, dated July 7, Prof. Obua asks for information and updates on the research progress of Covidex from PHARMBIOTRAC; a medical research centre based at MUST where Covidex was supposedly manufactured.

“The purpose of this letter is to ask you as the Center Leader, PHARMBIOTRAC, to URGENTLY furnish my office with information regarding the research project, especially COVIDEX, for which PHARMBIOTRAC team (with PI as Assoc. Prof. Patrick Ogwang Engeu) applied for financial support from the Government of Uganda through the MoSTI.”

Obua wants Casim Tolo Umba to provide data or report that was provided to National Drug Authority (NDA) for approval of COVIDEX and updates on funding that has been received from the Ministry of Science, Technology and Innovations (MoSTI).

Ogwang’s lawyer says “the contract of the professor has nothing to do with the inventions or discoveries.”

Omongole adds that that as University Vice Chancellor, Prof. Obua declined to conduct clinical trials for Covidex on grounds that it would embarrass the institution.

Although the tension over Covidex is between Prof. Ogwang and his employer; Mbarara University, it has sparked debates on intellectual property in Uganda; especially regarding to inventors based in public institutions such as universities.

Kakooza, the intellectual property lawyer, while being hosted by Anti-Counterfeit Network Africa to discuss the matter, says intellectual property is about creativity of the mind.

“So if a person like Prof. Ogwang goes into a lab and uses his mind to come up with Covidex, then that is his creativity and assumably his intellectual property.”

Kakooza says Ogwang would have to file a pharmaceutical patent for those who say that he cannot claim ownership for a drug whose elements are got from natural plants.

“A patent is a manmade solution to a technical problem,” Kakooza says.

He says according to the Industrial Properties Act, if a scientist like Ogwang is employed by a university and his contract stipulates that all the intellectual property out of his work is owned by the university, there would not be all these battles.

The Industrial Property Act 2014 also fuels the debate on the ownership of Covidex in Article 13. It states; “The following are not patentable— (a) plant varieties as provided for in the law providing for the protection of plant varieties”

Since the drug is a combination of plant varieties and compounds, it could beef up other ensuing legal cases arising from the contention.