South African IP policy approved by Cabinet for public consultation

By Professor Brook K. Baker, Senior Policy Analyst Health GAP

This analysis from Professor Baker is in response to the Memorandum issued by TAC and MSF last week and the subsequent news article published in Business Day Live on 8th August found here

This is a very positive development, largely resulting from a national campaign to Fix the Patent Law launched by the Treatment Action Campaign (TAC) and Doctors without Borders (MSF) in 2011, ten years after the Doha Declaration on the TRIPS Agreement and Public Health.

Although the news story reports that South Africa will adopt a patent examination system and that examination will reduce the number of secondary/evergreening patents, it is hard to assess the depth of the proposed reforms in the absence of access to draft intellectual property (IP) policy that was promised years ago.  In an earlier draft, the inputs of industry and pharmaceutical-affiliated lawyers were replete, but civil society and independent experts have not had true opportunities for input and access for nearly two years.

TAC and MSF put out a comprehensive release on patent reform on the eve of an IP event hosted by South Africa, WHO, WTO, and WIPO.  The report laid out the essence of the reforms that access-to-treatment activist feel are needed to ensure realization of the right to health.  The news report does not address many of their most pressing concerns including tightening up of patentability standards, allowance of opposition procedures, and simplification of compulsory licensing mechanisms among others.  The cabinet voted on August 7 to finally release the long-delayed IP Policy for a 30-day comment period.  This is regrettably short, but the most important issue is for government to take on-board any cogent comments offered by civil society to improve its access-to-medicines provisions.

Regrettably Prof. Dean is acting as an apologist for a system that is completely broken and that grants a higher percentage of pharmaceutical patents than even the US and Europe.  As a result, S. Africans are burdened not just with patents granting 20-year monopolies on new, break-through medicines, but stacked, successive 20-year monopolies on virtually every kind of minor modification to an existing medicines – new uses/indications, new forms/dosages/formulations, etc.  In the absence of a patent examination system in S. Africa, if you file out the applications properly and pay your fees, you can get a patent on peanut butter and jelly sandwiches, then peanut butter and grape jelly, then peanut butter and apricot jelly ad infinitum.

These excessive secondary patents are not cost free – they drive up the cost of medicines and extend the period of monopoly pricing but preventing generic competition. Higher prices, in turn, result in medical apartheid, where the vast majority of patients might be denied access to life-saving, but overpriced, medicines as both medical aides and the government deny coverage because of resource constraints.

South Africa’s move to amend its patent laws is not occurring in a vacuum.

Brazil will soon launch patent law reforms that are also designed to heightened patent standards and reduce the evergreening of pharmaceutical patents.  Zambia and Uganda too are currently considering patent reforms in line with reforms enacted in India in 2005 that have succeeded in greatly reducing the number of secondary patents.

At the same time that countries are belatedly reforming their laws to maximize use of flexibilities allowed under the WTO TRIPS Agreement, which sets forth minimum patent and data protection standards but also allows for nationally-derived flexibilities and exceptions, the US and EU are aggressively pursuing trade policies that would expand intellectual property rights and their enforcement and narrow the use of permitted flexibilities.  IP maximalist, often with the support of elements of government, are also supporting a glamour campaign for intellectual property, falsely selling it as the engine of an Africa renaissance.

Contrary to this claim, most credible economic studies show that IP in the continent, and in poorer countries more generally, does not lead to increased foreign direct investment, technology transfer, indigenous innovation, or development.

So a two front battle is being waged – one to enact and then use the limited flexibilities granted under international law for accessing more affordable medicines and another being waged against Big Pharma and Big Power interests that are trying to re-shackle Africa with IP constraints.

We must also begin to explore options like those being discussed at the WHO that recognize the failures in research and development and access that are a result of innovation policies wholly reliant on privatizing monopolies on essential public goods like medicines.


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