Can government walk the talk on patents and health? Good intentions at WIPO must be translated into action at home

This week (21-25 May 2012) the Standing Committee on the Law of Patents at the World Intellectual Property Organization (WIPO) in Geneva will discuss a proposal that was made by the South African delegation on behalf of the Africa Group and the Development Agenda Group. This submission essentially asks WIPO to assist developing countries to ‘adapt their patent regimes to make full use of the flexibilities available in the international patent system to promote public policy priorities related to public health.’ [1]

We applaud our delegation’s leadership on this important issue, but now urge the translation of this leadership on the international stage into action back home.

The essence of the proposal being made by the South African delegation is sound – we support the argument that countries should make full use of patent flexibilities to support access to medicines – this is indeed the fundamental reason TAC’s ‘Fix the Patent Law’ campaign exists. As outlined by us in earlier posts and materials, we are rallying  for government to prioritise the rights of patients by making legislative changes which will ensure that the patents office only reward real innovation, preventing ‘evergreening’ or abusive patenting. [2] If fewer patents are granted, then more generic versions of medicines will be able to enter the market, which will drive down prices.

In the case of HIV medicines, where patients can now access a number of affordable antiretroviral medicines; there are still a number of important 1st and 2nd line, and all 3rd line antiretroviral medicines that remain unavailable in the public sector because of patent protection. Legal flexibilities allowed under international law, could change this if written into our national law.

This week’s meeting will also discuss a US counter proposal, which calls for the Committee to focus rather on issues such as financing, regulation, and patent enforcement. [3] We see this as an attempt to obstruct our delegation’s proposal by seeking to minimise the impact patents have on medicines accessibility, and thus the need for use of patent flexibilities.

Over ten years have now passed since WTO members reaffirmed that international intellectual property law ‘should be interpreted and implemented in a manner supportive of [countries’] right to protect public health and, in particular, to promote access to medicines for all’. And literature surrounding how developing countries can move forward to incorporate flexibilities has been produced ad nauseam [5, 6, 7, 8]: the tools for incorporating patent flexibilities and confronting implementation challenges already exist.

While we commend the fact that the South African delegation in Geneva is calling for the use of the TRIPS flexibilities, we lament that government is continuing to drag its feet locally. This lethargy is undermining health. Government must walk its talk on this important issue.


Prepared by Katie Kirk

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