In 2011 Professor Yousuf Vawda of the Law Faculty at the University of Kwazulu-Natal wrote an important paper titled ‘Pharmaceutical Innovation, Incremental Patenting and Compulsory Licensing Country Case Study: South Africa’. This report was commissioned by the International Development Research Centre (IDRC) on the same topic in five developing countries (Argentina, Brazil, Colombia, India and South Africa).
The paper provides important background and perspective for anyone seeking to understand the influence that South Africa’s patent law has on the structure of South Africa’s pharmaceutical sector and on the cost of medicines and access to medicines more generally.
Vawda analyses South Africa’s pharmaceutical sector, looking at the market share held by international versus local companies, and the market share by volume and value of generic versus patented medicines. He outlines the composition of pharmaceutical patents upheld in South Africa, breaking down the distribution of these patents by country of origin, company and type.
Critically, the paper clearly shows that it is not South African companies, but rather foreign companies that draw the most benefit from South Africa’s patent system. This is primarily because the patent office does not conduct substantive examinations of patent applications, thus making it easy to obtain patents. Additionally, the relatively low application fees enable those companies to file a large number of applications, including those of dubious merit. Of 2,442 pharmaceutical patents granted in 2008, 1,988 of these patents were granted to EU and US companies whereas only 16 were granted to South African companies.
Vawda provides both a valuable history of the development of patent law in South Africa and insightful analysis of current legislation. The analysis includes a review of South Africa’s patent standards, procedures for granting and opposing patents and compulsory licensing – key provisions which are a major focus of the Fix the Patent Laws campaign.
Vawda concludes that “the legal framework for intellectual property can still be improved to considerably enhance access to medicines.”
See the full paper here
Citation for Paper: YA Vawda ‘Pharmaceutical Innovation, Incremental Patenting and Compulsory Licensing Country Case Study: South Africa’
Yousuf Vawda is an Attorney of the High Court in South Africa and a Professor of Law at the University of KwaZulu-Natal. Yousuf wrote his Doctor of Laws thesis on Access to Life-Saving Medication in South Africa: The Case for Legislative Reform.
 This paper is based on research, funded by IDRC (Canada), and conducted as part of a five-country study. Some of the results of the study have been published as Research Paper # 41 by the South Centre, authored by Carlos M Correa ‘Pharmaceutical Innovation, Incremental Patenting and Compulsory Licensing’ (September 2011).