Fix The Patent Laws

The Lancet publishes important article on patent law and health

Posted on | September 12, 2012 | No Comments

The medical journal The Lancet has published an insightful summery of current legal challenges to India’s patent law. The authors argue that “pending cases against India’s patent laws threaten public health and misinterpret international intellectual property agreements”. This is also our view.

The Fix the Patent Laws campaign is advocating for law reform in South Africa that would make our patent law more like that of India. As the article in The Lancet explains, India’s use of compulsory licenses is in line with international patent law.

South Africa’s Patents Act does technically allow for compulsory licenses, but only on restrictive grounds and through cumbersome procedures. As a result, South Africa has never granted a compulsory license on a pharmaceutical medicine – even though the cost of medicines has and continues to be a key barrier to access. As the Indian case indicates, and the article in The Lancet affirms, South Africa is well within its rights to institute more progressive compulsory license provisions in our national patent law.

The article also strongly argues that Section 3.D. of India’s patents Act is compliant with international agreements. Section 3.D. requires that new formulations of existing medicines should only be granted patetns if it can be proved that the new formulation offers a therapeutic benefit over the previous formulation. South Africa’s Patents Act does not have such a requirement to show improved therapeutic efficacy – which is one of the reasons why the country grants so many weak patents.

The article in The Lancet concludes as follows:

“In trying to limit compulsory licences and avoid efficacy tests on products, the Bayer and Novartis cases are seeking to undermine public health considerations aimed at improving access and therapeutic advantage. The TRIPS Agreement does not limit the grounds on which compulsory licences can be granted, and does not prevent patent applicants from having to demonstrate enhanced efficacy for their allegedly new and useful inventions. There are many problems facing access to and rational use of medicines in India but the provisions within the country’s patent laws, if more extensively and properly applied, should help rather than hinder such access. India’s laws and experiences could provide a useful example for low-income and middle-income countries worldwide.”

We highy recommend that you read the full article. It can be accessed here: India’s patent laws under pressure


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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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