Court declines to halt production of Covidex, strip Prof Ogwang of patent
What you need to know:
- According to the suit documents that Sunday Monitor has seen, the two had sought an order overturning NDA’s decision to allow Jena Herbals to deal in Covidex.
The High Court in Kampala has thrown out a request for a judicial review that had sought stop the production of Covidex, a herbal drug for use in the treatment of Covid-19 and other viral infections.
The request had also sought to strip Prof Patrick Ogwang of patent and copyrights over the drug and return them to Mbarara University of Science and Technology (MUST).
Prof Patrick Ogwang has been producing, distributing and selling the drug through Jena Herbals Uganda Limited since June 2021, when the National Drug Authority (NDA) cleared his firm to deal in it.
In his ruling on Friday, Justice Musa Ssekaana stated that the applicants, Advocates for People (AFP), and Mr Musa Muhammad Kigongo, were not qualified to file the same.
“The applicants are mere busybodies with lack of expertise to challenge the drug-making process and subjecting the same to challenge in judicial review procedure,” he ruled.
“The applicants, for reasons herein stated, lacked standing or locus standi in this matter and this would render the application incompetent,” Justice Ssekaana ruled.
According to the suit documents that Sunday Monitor has seen, the two had sought an order overturning NDA’s decision to allow Jena Herbals to deal in Covidex.
“The decision and procedure followed by NDA to approve Covidex as a supportive drug in management of viral infections, including Covid-19, among others, and authorising Jena Herbals Uganda to produce, sell and distribute the said drug whereas it is not the rightful owner or holder of the patent is not only illegal, procedurally improper, irrational, unconscionable… but also prejudicial to public interests and the taxpayers” the suit documents read in part.
They also sought a declaration to the effect that NDA’s decision as announced in a June 29, 2021 press release that cleared Jena Herbals to deal in the drug was “irrational, legally improper, unjustified and reached without due regard to the law and rules of natural justice”.
The plaintiffs also sought an order to stop the further production, sale and distribution of Covidex and costs of the suit.
The judge ruled that the matter of ownership of the patent and copyright over Covidex was resolved in September 2021 when MUST Council announced that Jena Herbal holds the copyrights for Covidex.
The judge also described the move against NDA as “totally misplaced and misconceived against” as the issue of patents do not fall within its mandate.
“The authority (NDA) is not concerned with patent rights and it was not concerned with determining whether the 2nd respondent or MUST owned the intellectual property rights in Covidex,” the judge ruled.
Justice Ssekaana added: “The main issue and concern of the applicants, if they had locus standi, would have been about intellectual property rights in the Covidex drug. This would have been a dispute that concerns patent or copyrights dispute, which would be addressed through other available legal redress rather than judicial review.
The judge also ruled that the applicants had failed to prove that they had sufficient interest in instituting the application for a judicial review.
“He (Mr Musa Muhammad Kigongo) does not state what interest he possesses to lead him to file this application for judicial review. The threshold for instituting an application for judicial review is to show sufficient interest in an application in order to be allowed access to the temple of justice,” he ruled.
This is the latest development in a series of legal battles that have taken place over the ownership of the Covidex patent and copyrights.
In July 2021, Kampala-based lawyer George William Alenyo, and Christian Chamber of Commerce, Agriculture, Industry, Trade and Tourism filed a suit in the High Court seeking a permanent injunction against Prof Ogwang from claiming patent or intellectual property rights over Covidex. They claimed he had used government funds and facilities to develop the drug. The case has never been heard.