Fix The Patent Laws

South Africa must follow BRICS peers’ lead: fix our dysfunctional patent system & protect public health

Posted on | March 27, 2013 | No Comments

As the 5th BRICS Summit kicks off today in Durban, the South African government must follow the lead of its BRICS peers to ensure that life-saving medicines are affordable.

Other BRICS countries have fulfilled the commitments they made in July 2011 to enact public health safeguards spelled out in World Trade Organisation (WTO) agreements. Decisive moves by Brazil, India and China have saved hundreds of millions of taxpayer dollars and dramatically increased access to medicine by bringing down prices. South Africa lags far behind because it still grants and protects patent monopolies of pharmaceutical companies, at the expense of South Africans’ health.

South Africa’s patent system currently allows for patent protection of pharmaceuticals additional to WTO 20-year requirements, and does not take advantage of flexibilities for protecting health, like overriding patents with a compulsory license (CL) when drugs are priced out of reach for those in need.

In India, a CL on cancer drug sorafenib was upheld earlier this month, making generic sorafenib available in India for R8.55 per 200 mg tablet — 97% less than the brand name product.  In South Africa, where no generic versions of this medicine are available, patients must pay R203.50 for the same tablet.

When Brazil issued a CL on the widely-used antiretroviral efavirenz in 2007, the switch to a generic saved the Brazilian government an estimated US$103,600,000 in treating HIV/AIDS from 2007-2011.[1]

South Africa has never issued a CL – despite being a major purchaser of antiretroviral drugs and TB treatment. This is partly due to outdated laws. In October 2012, MacDonald Netshitenzhe, Chief Director of Policy and Legislation at the Department of Trade and Industry (DTI) said South Africa had ‘unworkable’ law for issuing CLs. This intransigence contrasts starkly to China, which adopted legislation in May 2012 to allow for compulsory licensing for the protection of public welfare and public interest.

In addition to CLs, Brazil and India have also instituted patent examination systems to prevent pharmaceutical companies from obtaining patents on drugs, where there is no real innovation.  South Africa’s patent registration system, does not scrutinise patent applications, and often grants multiple patents on the same pharmaceutical ingredients. As a result, South Africa grants up to 50 times as many pharmaceutical patents in a year as Brazil or India. Therefore, some life-saving drugs are priced out of reach of the Department of Health, medical aid schemes, and individuals who need to buy them.

By protecting poor-quality patent monopolies of pharmaceutical companies, South Africa cannot obtain more affordable generic medications available from BRICS countries like India, nor develop substantial local pharmaceutical production capacity.

The Treatment Action Campaign (TAC) and Médecins Sans Frontières/Doctors Without Borders (MSF) are jointly campaigning for the amendment of South Africa’s patent laws, to put the country on par with its BRICS peers in protecting public health. 

  •  Despite South African government assurances that a new law is in the works, the deadline for the draft law to be made public and opened for comment has been repeatedly missed.
  • TAC and MSF urge the DTI to ensure the timely release of this policy, and insist that the policy uphold South Africa’s commitment to join the ranks of BRICS countries protecting public health through their laws and actions.


Kate Ribet – MSF SA Media Liaison Officer | mobile +27 79 87 22 950 |

Catherine Tomlinson – TAC | mobile: 076 318 5632 |



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  • About the Campaign

    fix the patent laws
    Fix the Patent Laws is a campaign co-founded by SECTION27, Treatment Action Campaign (TAC) and Doctors Without Borders (MSF) in 2011. Since then, the coalition has grown to include 38 other organisations fighting together to push South Africa to amend its patent laws to prioritise public health. Through this blog we will highlight how amending South Africa’s Patents Act 57 of 1978 will reduce the cost of medicines, improving the health and saving the lives of millions of South Africans.

    The members of the Fix the Patent Laws Campaign are as follows: Treatment Action Campaign (TAC), Doctors Without Borders (MSF), SECTION27, the South African Non-Communicable Diseases Alliance (SANCD Alliance), DiabetesSA, EpilepsySA, Marie Stopes South Africa, Stop Stock Outs Project (SSP), South African Depression and Anxiety Group (SADAG), Cape Mental Health (CMH), the South African Federation of Mental Health (SAFMH), Schizophrenia and Bipolar Disorders Alliance (SABDA), as well as the following members of the Cancer Alliance and Advocates for Breast Cancer: Breast Course 4 Nurses, Breast Health Foundation, Cancer Association of South Africa (CANSA), Cancer Heroes, Can-Sir, CanSurvive, Care for Cancer Foundation, Childhood Cancer Foundation of South Africa (CHOC), Hospice Palliative Care Association (HPCA), Igazi Foundation, Look Good Feel Better, Love your Nuts, Lymphoedema Association of South Africa (LAOSA), Men’s Foundation, National Council Against Smoking, National Oncology Nursing Association of SA, Pancreatic Cancer Network of SA (PanCan), People Living With Cancer (PLWC), Pink Trees for Pauline, Pink Phoenix Cancer Foundation, Pocket Cancer Support, Project Flamingo, Rainbows and Smiles, Reach for Recovery, South African Oncology Social Work Forum (SAOSWF), The Pink Parasol Project, The Sunflower Fund, Vrede Foundation and Wings of Hope.

  • Read the TAC and MSF campaign pamphlet

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