There is, apparently, a notable increment in an interest in alternative medicines and in the same breath, another increment in the criticism of modern medical researchers who use knowledge of local medicines to develop modern medicines which they later patent and sell expensively to local people who interact with the same local medicines.
This could be explained by a distrust so to say in the efficacy of modern medicines – when treating mostly undefined ailments and the good old belief in the relief occasioned by local medicines (read herbs), and also the dearth of an infrastructure decent enough to enable the exploration of these medicines especially in modern times and the alleged looting of the same by international pharmaceutical companies who never credit their sources.
In Mbarara, Uganda is a manufacturing plant which amongst others produces a product now commonly and/or widely known as Kazire. Kazire is a green, multipurpose, herb-founded health drink which is said to treat or heal more than a few common ailments. I know about it, have seen it, keep hearing about it, but have never used it.
The plant has produced and packaged a product which has risen above known local standards in as far as making herbal medicine available to the public, so much so that a product like it which was previously unavailable, has now gotten to everyone’s reach – for use, both as a product or been included into their vocabulary, with “Bakuhe Kezire” becoming an agreed phrase to loosely imply recognition for its excellence.
Previously, the only knowledge we had was handed down through orature to communities by our forefathers and on radio programs by those who had been recognised as doctors or traders in local medicines – as they were – like a one Dr. Umaru, who had even franchised his business to a few villages and some towns. Today’s contemporary equivalent is active Facebook groups, like the popular Healing Naturally Together, and internet based information promoting the appreciation of alternative medicines for and including terminal illnesses like cancer, sickle cells anaemia, and asthma.
Why Does Patent Law Exist?
The difference between the widespread usage of local medicines and the criticism delivered upon successful international pharmaceuticals could be addressed by patenting. However, we need to appreciate first questions like what a patent is, what it means to be patented, why patenting exists, and how to apply for and obtain a patent, and the pertaining responsibilities, before we can critically examine the possibility of patenting local medicine and answer the question as to whether local people can protect their rights in local medicine – if any – and whether there can be communal ownership of a patent.
Patent law and system exists to promote public goods. I take as a well-accepted starting point that the purpose of a patent is to encourage inventors to produce socially valuable goods that would not otherwise be produced. As such, whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may, or rather should obtain a patent thereof. Well, that is as per Section 101 of title 35 of the United States Code.
In Uganda, the patent system is governed by the patent law, which is detailed in The Patents Act, Chapter 216 of the Laws of Uganda.
The initial step in the process of applying for a patent is the identification of an invention. Section 7 of The Patents Act clearly defines an invention as a solution to a specific technological problem and may be or may relate to a product or process.
Subsequently, the invention ought to be as patentable as illustrated in Section 8; it has to meet the three essential requirements for patentability – be new, involve an inventive step, and be industrially applicable.
According to Section 9, an invention is new if it is not anticipated by prior art, that is whether by means of written disclosure, including drawings and other illustrations, or by oral disclosure, use, exhibition or other nonwritten means. In a culture like ours, where knowledge, even on medication, is passed down from generation to another through orature, one would have to create ways, processes and products that surpass that system of distribution.
In Section 10, an invention is considered as involving an inventive step if, having regard to the prior art within the meaning of Section 9, it would not have been obvious to a person skilled in the art, on the date of the filing of the application to a person skilled in the art, on the date of the filing of the application or if priority is claimed, on the priority date validly claimed in respect of it. It should, thus, beyond providing something new, something novel, provide means – of production, for example – previously unknown.
Finally, an invention is considered industrially applicable if, according to its nature, it can technologically be made or used in any kind of industry. Kazire has, with its proliferation, ably transmitted herbal medicine from a knitted secret into an acquired taste, a refreshment, one that can go easily be measured in the same breadth as longstanding brands like Coca-Cola.
I, shamefully, know not whether Kezire has patented their methods, processes, and products (I hope they have) but their adaptation (aforementioned) has, at least to me, illustrated how a local medicines manufacturer can make the most of our innate, centuries old, knowledge and usage of local medicine without paying particular attention or whining due to foreign looting, intervention and denial of accreditation.
In a country, and continent without much to offer in the form of filing, searching, and examination, of applications for the protection of inventions, and for rendering special technical services, Kazire deserves worthy notation.
For there to be more entities like Kazire, it is important to educate the populace about the standards and requirements that they will have to meet before that is possible. For example, that according to Section 13 (5) of The Patents Act, there is no recognition of communal ownership of a patent, but application for a patent can be made by, and awarded to the individual applicant or to their agent or an agent of a community. Owning a patent as a community, especially in our overly informal cultures, would defeat the responsibilities that accrue from being granted one.
Ownership of a patent is exclusive. The owner of a patent has an exclusive right to make, use, exercise and vend their invention (Section 25). They can only transfer their patent or the application for it down in succession [Section 25 (3)].
It is absolutely wonderful that authorities like the African Medicines Agency, which is geared towards improving local production of essential medicines within the framework of the African Union, have been formed to contribute to help enable the development of products that are within its realm.
With the tilt towards proven local medicine and/or internationally recognised alternatives to modern medicine, their work is already set out for them.
This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 2 of May 12th, 2017
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