The relevancy of the Industrial Properties Act in Uganda

By Namara Keith Kyaruzi

ABSTRACT

This paper looks into the relevancy of an intellectual Property law in Uganda with particular reference to the newly enacted Industrial Properties Act. It seeks to examine if indeed there is need for a law that regulates Intellectual property rights as guaranteed under the Act.

The Industrial Properties Act has largely been a unique phenomenon in Intellectual property law in the Country. This is because the existing patents Act of 1993 cannot be said to have been such a strong law on patents. Besides there had arisen no need to improve the law on industrial property to meet the developments in the intellectual property arena, especially for a third world country like Uganda. 

This text is therefore directed at investigating if there is need that has arisen for a new law on patents in Uganda and if that need is sufficient to warrant the enactment of the industrial properties Act repealing the patents Act and also the importance of this new law in a developing country like Uganda.

INTRODUCTION

Intellectual property law is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill. (Bainbridge, 2010) Whereas industrial property law may mean law granting rights under patents, certificates of utility models and technovation and registration of industrial designs issued under the Industrial Properties Act. 

An invention can be defined as a new and useful art whether producing a physical effect or not, process, machine, manufacture or composition of matter which is not obvious, or a new and useful improvement of it which is not obvious, capable of being used or applied in trade or industry; and includes an alleged invention.

Uganda being a British colony obtained her very first patent law from the English as part of its colonial inheritance. It is from this that the patent Act came into force in 1993 after many changes that were made over the years in England. The aim of the patent system then and now is to encourage the development of technology by the local citizenry and to be able to put to use what has been patented. However, these aims remain to be said to have been achieved not only in Uganda but also in other developing countries. 

This is precisely because the laws that are made are being inspired by foreign existing laws presenting a lot of difficulty. The environment that the laws are made subject in foreign jurisdiction is certainly different from the situation in Uganda owing to the fact that these foreign jurisdictions are in most cases (if not in all cases) developed countries while the recipient country (Uganda) is a developing country.

While discussing the development and relevance of Industrial Property laws in Uganda, it is pertinent to also pay tribute to the TRIPS agreement and its influence on patent law in Uganda. Uganda’s membership with the World Trade Organisation made it subject to the minimum standards of patent law as suggested by the TRIPS agreement. This agreement’s suggested standard is what resulted into the current Industrial Properties Act.

The Industrial Property Act is part of a process to support private sector development, reform in commercial justice and to encourage private investment. Uganda was obligated to enact this law as a new engine of growth to enhance social and economic prosperity. To achieve this, Uganda has been part of many other international treaties. These include; World Intellectual Property Organization (WIPO), African Regional Intellectual Property Organization (ARIPO), the Paris Convention, Patent Cooperation Treaty, TRIPS-Agreement and to a certain level, Uganda has used the Nice Agreement on classification of goods and services. 

In the following section, I will be examining the role of the Industrial properties Act laws in different sectors of; technology and industry, agriculture, trade, health among others.

The role of the Industrial Properties Act in technology and Industry.

The long title of the Industrial Properties Act (herein after referred to as IPA) states in part that the Act is to provide for the promotion of inventive and innovative activities, to facilitate the acquisition of technology through the grant and regulation of patents, utility models, industrial designs and technovations. This provision highlights the role that the law can play in encouraging technological developments. 

S.38 of the IPA is to the effect that the owner of a patent has exclusive rights of use over the patented product and no one else is allowed to use it without his authorisation. This protection given by an inventor is certainly an assurance of a monopoly for his innovation which works as an incentive to the inventor. It should be argued that with such a reward of monopoly, the inventor will be motivated in engaging in more research to come up with more inventions and perhaps better inventions. The absence of Industrial Property laws would lead to very absurd tendencies like infringements that could dispirit inventors. In Uganda, the IPA will boost confidence in technological research for institutes like Uganda Industrial Research Institute which aims at promoting and improving the level of technology in Uganda.  (Institute, 2014)

Furthermore, Patent laws are a form of contract between the inventor and the grantor. What the patent system does is to guarantee a limited term of protection in return for the inventor’s agreement to disclose details of his invention and, ultimately, to abandon his property right in it. This benefits society by stimulating investment and employment because details of the invention are added to the store of available knowledge. After the expiry of the patent, the knowledge is put to use in the technology world.

The role of Industrial Property Act in Agriculture;

S.12 of the IPA Act, is to the effect that an invention will be considered industrially applicable if it can be made or used in Agriculture. The implication of this provision is that, an invention that relates to agriculture will be protected by the Act. In Uganda, the presence of the National Agricultural Research Organisation (NARO) avails chances for agricultural innovations. NARO’s vision is “A farmer responsive research system that generates and disseminates problem-solving, profitable and environmentally sound technologies, knowledge and information on a sustainable basis.” 

The promotion of innovation can be inferred from the vision of the organisation. With the Industrial properties Act, NARO and other agricultural research centres can possibly develop a drought, insect, disease, and herbicide tolerant seed product that can justify the investments needed to develop a transgenic crop solution. The Industrial Properties Act therefore comes in to grant patent protection to such agricultural inventions in areas like plant variety protection. This will eventually lead to sustainable agricultural productivity, poverty eradication and economic development.  

The role of the Industrial properties Act in trade and commerce.

Technological knowledge, ideas, methods and techniques are quickly becoming society’s most important economic assets. The growth of knowledge as a tradable asset, which takes many forms in its creation, dissemination and movement across borders, is now an established feature of all economies (Curtis, 2012). This received recognition by the World Trade Organisation in the 1990s through one of its major components; the TRIPS agreement where countries agreed to certain intellectual property rights standards and obligation in any regional or bilateral trade agreements.

The aspect of patent rights as a means of attaining economic ends can be traced through the IPA. S 38 of the IPA precludes any commercial use of the patent by a third party not being the patent holder, such commercial use can be after the patent holder has assigned or licensed the patent under the IPA. This assigning or licensing can only be after the licensee has submitted a consideration for the patent; he/she cannot attain the patent (knowledge) at a free cost except if the patent holder wishes it (This rarely happens in practice). A patent is to be looked at as an investment and as a product that is being traded to acquire money. 

The fundamental question to ask however is if the desire to promote the economic self interest of the patent holder through grant of a monopoly overrides the desire to utilise the newly acquired knowledge in solving society needs and improving on human conditions. As to whether this is true for the former or the later; that is certainly a question for another day.

The role of Industrial properties Act in health

In the health sector, Intellectual property can provide stimulation for the development of new drugs and medicine (Organisation, 2014). Researchers will often want to be sure they can recoup their investment costs before they can engage in any serious research. In Uganda, research by the Joint Clinical Research Centre for an HIV vaccine has been partly inspired by the protection to be received from Intellectual Property rights.

However, it has been argued that the monopoly granted to a patent holder to recoup his profits results in unmanageable prices on the product, burrs the generic modifications of the said drugs and generally puts the medicine out of reach to those who need it. 

This argument however cannot be maintained amidst the mechanisms that have been put in place to circumvent the monopoly granted. Mechanisms like; voluntary licensing, compulsory licensing, bulk purchasing and corporate donations have been effective measures to relax the patent standard requirements. In addition to that, in a recent study (Attaran, 2014) it has been established that geographic patent coverage does not appear to correlate with antiretroviral treatment access in Africa, areas covered by patent law still access drugs like ARVs, instead, the areas that are not covered by patent law have had little access to drugs, suggesting that patents and patent laws are not a major barrier to treatment access in and of themselves.

Despite the importance of patent law as demonstrated in the discussion above, it cannot go without argument that to some extent, Patent law has been an unknown and rare field that has been neglected for some time for that same reason. In the next text, I will discuss to what extent patent law has been misguided and irrelevant in Uganda.

Since the start of Intellectual property law in the early 1760s, Uganda had largely remained without patent law until the inception of the Patents Act of 1993. This is not for any strange reason but one particularly, the law was/is irrelevant to the situation in Uganda. The level of research, innovation and invention was/is still so low to require a fully fledged Act on Intellectual Property rights.

Level of industrialisation in Uganda

Industrialisation in Uganda only took route in the 1940s under British colonial rule, the industries then were only meant to export primary products. Processing industries only emerged after the 1945 Owen Falls dam power project which supplied Hydro electric power to the industries. Even then, these industries were meant to prepare coffee and cotton for export. This slow rate of industrial growth was further stalled in the Idi Amin regime where the industrial infrastructure was disorganised and there was virtually no presence of heavy industries.

(The evolution of industries in Uganda, 2013) The rate has only fairly improved in the country; however, any significant number of patents is yet to be registered with the Uganda Registration Service Bureau.  This argument is to illustrate that the industries that exist at the moment have no capacity to influence the need for Intellectual property law and as such, the Intellectual property law is a luxury. The level of industrialisation is small and the rate of industrialisation is slow.

The cost of patent registration

The process of registering a patent is too expensive, complex and also extensive. In most cases, it requires an applicant to get a sponsor to aid in financing the entire process to the end. That being the fact, many Ugandans would find the process unmanageable, besides, looking for a sponsor will wedge in more undercutting issues like co-ownership, licensing or even assigning the rights off which is undesirable to any patent applicant. 

In many cases in Uganda, the so called sponsors tend to cheat inventors of their inventions taking advantage of the prevailing ignorance about intellectual property rights and obtaining their innovations illegally. In other words, an average Ugandan will fill bothered by the registration of a patent, there seems to be no morale to patent anything.

CONCLUSION

It can conclusively be argued that the Industrial properties law is a desired occurrence in Uganda, the relevance of the Industrial properties Act cannot be disputed especially with the current shift of priorities by the Ugandan government to science, research, and industry. The presence of government backed research under several organisations like NARO, JCRC, UIRI and science & technology universities around the country has a lot to tell about the need for an Industrial Properties law. The law will not only encourage innovation but will also promote investment and eventually lead to economic growth. 

The Industrial properties Act acts as a precursor of a new era in Uganda, an era that has traversed a sluggish history of industrialisation to what exists currently as a rapid growing industrial sector. It is now that innovations have started cropping up across the country in Universities, research institutes and in the private sector. The increasing need to support these innovations by providing incentives and assurance to the inventors about their inventions through grants of Intellectual property rights can be well satisfied by the new Industrial Properties Act. 

Relevant books and Journals for further reading

Attaran, A. (2014, October 24th). Do patents for Antiretroviral drugs constrain access to treatment in Africa.

Beinbridge, D. I. (2010). Intellectual Property. Edinburgh: Pearson Education Limitted.

Curtis, J. M. (2012). Intellectual Property rights and Intellectual trade: An overview, Centre for intellectual governance Innovation.

Institute, U. I. (2014, October 24th). Kampala, Central.

Organisation, W. H. (2014). Trade, foreign policy, diplomacy and health. New York.

The evolution of industries in Uganda. (2013). Learning to compete conference: Industraial Development and policy in Africa. Helsinki, Finland.

 Edgar Tabaro, “Copyright Law Reform in Uganda: Addressing International Standards at the Expense of Domestic Objectives,” ACODE Policy Briefing Paper No. 10, 2005: