[Ip-health] 80 academics, researchers & teachers call on President Ramaphosa to #FixPatentLaw

Lotti Rutter lotti at healthgap.org
Wed May 20 03:38:59 PDT 2020


**Apologies for cross posting**

Dear comrades,

Please find below a letter sent by 80 leading academics & researchers to
President Ramaphosa calling for urgent patent law reform in South Africa,
as well as other measures to remove patent barriers to COVID-19 related
health products.

Thanks
Lotti

MoRE THAN 80 ACADEMICS, RESEARCHERS AND TEACHERS CALL ON PRESIDENT
RAMAPHOSA TO FIX THE PATENT LAWS
https://www.fixthepatentlaws.org/more-than-80-academics-researchers-and-teachers-call-on-president-ramaphosa-to-fix-the-patent-laws/

May 20, 2020

The letter reproduced below was sent to President Cyril Ramaphosa on 19 May
2020 by more than 80 leading academics, researchers and teachers in South
Africa. They urge the President to urgently reform South Africa’s patent
laws and take further steps to ensure access to COVID-19 related health
products. The original letter can be accessed here
<https://www.fixthepatentlaws.org/wp-content/uploads/2020/05/Academics-Letter-to-the-President-180520.pdf>
.

———————————————————————————————————————

*AN APPEAL TO PRESIDENT CYRIL RAMAPHOSA BY ACADEMICS, RESEARCHERS AND
TEACHERS TO EXPEDITE THE AMENDMENTS TO THE PATENTS ACT 57 OF 1978, IN LINE
WITH THE INTELLECTUAL PROPERTY POLICY PHASE I APPROVED BY CABINET IN MAY
2018.*

*18 May 2020.*

Dear Honourable President Ramaphosa,

We commend our government’s efforts in responding swiftly to the COVID-19
pandemic by the measures already taken to slow down the rate of infections,
and to prepare our health facilities for the inevitable demand for beds and
health services.  But importantly, steps must also be taken urgently to
ensure access to COVID-19 health products, both existing and prospective.

We write to you as academics, researchers and teachers from various
disciplines who are gravely concerned about the impact of the COVID-19
pandemic on our country and the world. In particular, we are concerned
about our ability to provide the essential health products to meaningfully
respond to this crisis – the personal protective equipment, diagnostic
tests and reagents, ventilators, medicines and vaccines which will be
required on a massive, unprecedented scale.  More particularly, we are
writing because of the urgency of completing the process of amending South
Africa’s Patent Law to strengthen patentability criteria, to provide for
substantive examination of patent applications, and to adopt lawful
flexibilities under the WTO TRIPS Agreement to ensure access to medicines
for all.  That long-delayed imperative is even clearer now as we face high
prices and limited supplies of vitally needed COVID-19 health products.

Our sense of urgency stems from the reality that many of the products
required already are, or will soon be, protected by patents and other
intellectual property, test data and trade secret protections, thereby
making them unaffordable to our government for the treatment of all the
people in our country. Such protections are the death knell of equitable
access to health products.

Under our present patent system, there is no substantive examination of
patent applications to ensure that they meet the rigorous criteria for the
grant of a patent. This allows pharmaceutical companies to obtain unworthy
initial patents and multiple patents on the same medicine thereafter by
making small changes, even when such changes are obvious and lack
inventiveness. This multiple-patenting strategy, commonly known as ‘patent
evergreening’, results in extending patent monopolies beyond the 20 years
required by the WTO trade and intellectual property rules, and blocks the
early entry of generic competitors who can expand sources of supply and
bring more affordable products to market. Countries like India and
Argentina have already taken proactive steps in their legislation to
counteract this problem.

Our current patent laws also compromise the security of medicines supply in
the country. If patent holders are unable or unwilling to deliver adequate
supplies — as we have witnessed recently with the bans on exports of
diagnostics by certain countries — we should be able to increase supply
through the use of generic products registered in South Africa, which could
increase availability and avoid stock outs. It would also enable local
manufacturers to scale up the manufacture of the needed health products,
thereby also advancing a key industrial policy objective.

Such abuses of patents have restricted, and continue to restrict, access to
medicines for millions of our people suffering from TB, cancer, hepatitis
and mental health conditions — and will most likely also threaten access to
any future COVID-19 related technologies.

We have been there before. We witnessed first-hand how these laws and
procedures for protecting patents blocked access to affordable versions of
lifesaving antiretroviral medicines (ARVs) for the people needing them.
After a lamentable period of delay, South Africa now has the world’s
largest treatment programme with nearly 5 million people on ARVs, thanks to
the availability of generic versions, which reduced the cost of treatment
from over $10,000 per person per year to less than $.21 per person per day.
We watched in desperation as countless lives were lost waiting for
affordable prices. Our people should not have to go through that again.

It is precisely for these reasons that your Cabinet wisely approved the
Intellectual Property Policy of the Republic of South Africa Phase 1 in May
2018. It is now 2 years since that decision, and we still do not have the
relevant legislation before Parliament to ensure that government meets its
constitutional obligations to deliver access to health care and the
medicines necessary to defeat the current pandemic.

As academics, researchers and teachers at our universities, colleges and
other institutions, we have actively participated in that policy-making
process, providing comments and technical advice on successive earlier
drafts of the policy. We are firmly convinced that the proposed amendments
are compliant with international law and advance the right to access health
care under our Constitution.

It is therefore imperative that the draft legislation is tabled, through
the relevant Minister, as a matter of urgency, subjected to a short period
of public comment, processed expeditiously through our legislature, and
assented to by the President.

We are also in support of calls that the government take additional
proactive, emergency measures to ensure affordable access to COVID-19
health products of assured quality as many countries, both developed and
developing, have recently done.  For example, the Companies and
Intellectual Property Commission (CIPC) could and should be encouraged to
adopt a temporary moratorium on the issuance of any patents on
COVID-19-related health products for the duration of the pandemic
emergency.  In addition, the government can and should adopt emergency
measures allowing for an automatic or mandatory compulsory licence for
public and/or all-sector use with respect to any COVID-19 medical product
for which prices are too high or supplies are insufficient to meet our
local needs. Such licences should not only address the right to work
patents, but also the right to access and use trade secret and confidential
business information, especially manufacturing know-how, and where
necessary access to clinical trial and other data needed to facilitate
registration of licensed medical products. The government could also assure
sufficient productive capacity to supply non-predominant quantities of
medical products produced under such licences, to neighbouring African
countries.  Finally, the government could also issue compulsory licences to
enable the supply to African countries with insufficient manufacturing
capacity, pursuant to Article 31bis of the TRIPS Agreement.

We once again call on you to demonstrate, as you continue to do, the
decisiveness and leadership which the people of South Africa have come to
expect of you.

Thank you.

Sincerely,

Signatories:

Professor Yousuf A Vawda, Senior Research Associate, School of Law,
University of KwaZulu-Natal.

Professor Brook K Baker, Northeastern University School of Law, USA;
Honorary Research Fellow, University of KwaZulu-Natal.

Professor Caroline Ncube, DSI/NRF SARChI Research Chair in Intellectual
Property, Innovation and Development, Department of Commercial Law,
University of Cape Town.

Mr Andy Gray, Senior Lecturer, Division of Pharmacology, Discipline of
Pharmaceutical Sciences, School of Health Sciences, University of
KwaZulu-Natal.

Prof F Suleman, Professor: Discipline of Pharmaceutical Sciences, School of
Health Sciences, University of KwaZulu-Natal.

Dr Mamphele Ramphele, MB ChB, PhD, Co-president of the Club of Rome; Member
of the Academy of Sciences of South Africa.

Professor Leslie London, Head: Division of Public Health Medicine, School
of Public Health and Family Medicine, University of Cape Town.

Professor Jerome A Singh, Head: Ethics and Law, CAPRISA, SA; Director,
Ethical, Legal, Social Issues Advisory Services on Global Health Research
and Development, SA; Adjunct Professor, Division of Clinical Public Health
and Joint Centre for Bioethics, Dalla Lana School of Public Health,
University of Toronto, Canada.

Professor Malebakeng Forere, School of Law, University of the
Witwatersrand, Associate Professor of Intellectual Property.

Associate Professor Tobias Schonwetter, Director: Intellectual Property
Unit, Department of Commercial Law, Faculty of Law, University of Cape Town.

Professor David McQuoid-Mason, Centre for Socio-Legal Studies, University
of KwaZulu-Natal.

Professor Helen Schneider, School of Public Health, University of the
Western Cape.

Professor Lonias Ndlovu, Dean, School of Law, University of Venda,
Thohoyandou, South Africa.

Professor M Iqbal Parker, Emeritus Professor of Medical Biochemistry and
Structural Biology and Senior Research Scholar, Department of Integrative
Biomedical Sciences, Faculty of Health Sciences, University of Cape Town.

Distinguished Professor Catriona Macleod, SARChI Chair of Critical Studies
in Sexualities and Reproduction, Rhodes University.

Dr Varsha Bangalee, Senior Lecturer, Discipline of Pharmaceutical Sciences,
University of KwaZulu-Natal.

Dr Sheetal Soni, Deputy Academic Leader, Lecturer (Bioethics and
Intellectual Property Law), University of KwaZulu-Natal.

Professor Kaymarlin Govender, Director-HEARD Institute, College of Law and
Management Sciences, University of KwaZulu-Natal.

Mr Umesh Bawa, Clinical Psychologist/Director: International Relations,
University of the Western Cape.

Dr Marietjie Botes, APACHE Post-doctoral Research Fellow, Health Law and
Bioethics, University of KwaZulu-Natal.

Associate Professor Wendy Burgers, Department of Pathology, University of
Cape Town.

Professor Tanya Woker, School of Law, University of KwaZulu-Natal.

Dr Flavia Senkubuge, Specialist: Public Health Medicine, School of Health
Systems and Public Health, University of Pretoria.

Dr Beverley Townsend, Postdoctoral Fellow, School of Law, University of
KwaZulu-Natal.

Prof Neo Morojele, Professor of Psychology, University of Johannesburg.

Associate Prof Rashid Ahmed, Department of Psychology, University of the
Western Cape.

Dr Arne von Delft, Epidemiologist, School of Public Health and Family
Medicine, University of Cape Town.

Dr Lee Swales, Senior Lecturer and Attorney, School of Law, University of
KwaZulu-Natal.

Prof Elelwani Ramugondo, Deputy Dean: Postgraduate Education, Faculty of
Health Sciences, University of Cape Town.

Professor Hoosen Coovadia, Director: Maternal, Adolescent and Child Health
Systems (MATCH); Emeritus Professor of Paediatrics and Child Health;
Emeritus Victor Daitz Professor of HIV/AIDs, University of KwaZulu-Natal.

Professor Ashraf Kagee, Professor of Psychology, Co-Director: Alan Flisher
Centre for Public Mental Health, Stellenbosch University.

Prof Uta Lehmann, Director: School of Public Health, University of the
Western Cape.

Dr Catriona A Towriss, Senior Lecturer, Centre for Actuarial Research,
University of Cape Town.

Ms Sandhiya Singh, Lecturer, School of Law, University of KwaZulu-Natal.

Prof Mohamed F Jeebhay, Head of Occupational Medicine, Faculty of Health
Sciences, University of Cape Town.

Professor Klaus D Beiter, Associate Professor, Faculty of Law, North-West
University, Potchefstroom; Affiliated Research Fellow, Max Planck Institute
for Innovation and Competition, Munich, Germany.

Professor Lucy Gilson, Professor of Health Policy Systems, University of
Cape Town.

Associate Professor Lucia Knight, School of Public Health, University of
the Western Cape.

Associate Professor Liz Gwyther, Head of Palliative Medicine, School of
Public Health and Family Medicine, University of Cape Town.

Professor Diane Cooper, School of Public Health, University of the Western
Cape.

Professor Keertan Dheda, Professor of Respiratory Medicine, Director: Lung
Infection and Immunity Unit; Head: Division of Pulmonology, Department of
Medicine, University of Cape Town.

Professor Keymanthrie Moodley, Director: Centre for Medical Ethics and Law,
WHO Collaborating Centre in Bioethics, Department of Medicine, Faculty of
Health Sciences, Stellenbosch University.

Ms Nikki Schaay, Senior Researcher, School of Public Health, University of
the Western Cape.

Professor Sharon Prince, Head: Department of Human Biology, Faculty of
Health Sciences, University of Cape Town.

Dr Tom Ellman, Director MSF Southern Africa Medical Unit.

Dr Carla Tsampiras, Senior Lecturer in Medical and Health Humanities,
University of Cape Town.

Associate Professor Mershen Pillay, Lecturer in Speech Pathology,
University of KwaZulu-Natal.

Dr Mohamed Ishaaq Datay, Senior Lecturer Health Promotion and Specialist
Physician, Primary Health Care Directorate, University of Cape Town.

Professor Theresa Lorenzo, PhD Programme Convenor: Division of Disability
Studies, Department of Health and Rehabilitation Sciences, Faculty of
Health Sciences, University of Cape Town.

Professor Lynette Denny, Chair Obstetrics and Gynaecology, Groote Schuur
Hospital, CapeTown; Director: Gynaecology Cancer Research Centre, SA
Medical Research Council.

Professor Jennifer Moodley, Director: Cancer Research Initiative,
University of Cape Town.

Associate Professor Shahieda Adams, Division of Occupational Medicine,
University of Cape Town.

Professor Alex Welte, DSI-NRF Centre of Excellence in Epidemiological
Modelling and Analysis, Stellenbosch University.

Professor Julian Kinderlerer, Past President, European Group on Ethics;
Emeritus Professor of IP Law, IP Law and Policy Research Unit, University
of Cape Town; Former Professor of Biotechnology and Society, TU Delft;
Visiting Professor, School of Law, University of KwaZulu-Natal.

Ms Lindiwe Maqutu, Lecturer, School of Law, University of KwaZulu-Natal.

Associate Professor Delva Shamley, Director: Clinical Research Centre; Head
of Division of Clinical Anatomy and Biological Anthropology, Faculty of
Health Sciences, University of Cape Town.

Mr Jay Kruuse, Director, Public Service Accountability Monitor, School of
Journalism and Media Studies, Rhodes University.

Ms Priya P Singh, Lecturer, School of Law, University of KwaZulu-Natal;
Attorney and Notary of the High Court of South Africa.

Ms Sarah Driver, Senior Lecturer, Faculty of Law, Rhodes University.

Ms Jacintha Toohey, Lecturer, School of Law, University of KwaZulu-Natal.

Dr Hazel Bradley, Senior Lecturer in Public Health, School of Public
Health, University of the Western Cape.

Professor Fons Coomans, Faculty of Law, Maastricht University, The
Netherlands; Visiting Professor, University of Cape Town.

Ms Megan Pentz-Kluyts, CANSA Dietician, Member of Research Operations and
Research Committees, Cancer Association of South Africa.

Ms Michelle Pressend, Lecturer in Environmental Sociology, University of
Cape Town.

Dr Jawaya Shea, Head: Child Health Unit, Department of Paediatrics and
Child Health, Faculty of Health Sciences, University of Cape Town.

Professor Mpiko Ntsekhe, Mauerberger Chair of Cardiology, University of
Cape Town.

Professor Collet Dandara, Professor of Human Genetics, University of Cape
Town.

Associate Professor Shajila A Singh, Department of Health and
Rehabilitation Sciences, University of Cape Town.

Associate Professor Lydia Cairncross, Head: Endocrine and Breast Surgical
Unit, Division of General Surgery, University of Cape Town.

Dr Virginia Zweigenthal, School of Public Health and Family Medicine,
Faculty of Health Sciences, University of Cape Town.

Dr Indira Govender, Clinical Research Fellow, London School of Hygiene and
Tropical Medicine (based in Somkhele, KZN); Member, Rural Doctors
Association of SA, Stop Stockouts Project.

Professor Adam Haupt, Deputy Dean of Staffing: Faculty of Humanities,
University of Cape Town.

Dr Zenda Woodman, Department of Integrative Biomedical Sciences, University
of Cape Town.

Mr Bonginkosi Shozi, PhD Fellow: African Health Research Flagship, School
of Law, University of KwaZulu-Natal.

Professor Purshottama Sivanarain Reddy, Senior Professor, School of MIG –
Discipline of Public Governance, University of KwaZulu-Natal.

Professor Alison V September, Head: division of Exercise Science and Sport
Medicine, Department of Human Biology, University of Cape Town.

Dr Feroza Amien, Lecturer, Division of Public Health Medicine, Faculty of
Health Sciences, University of Cape Town.

Professor Muazzam Jacobs, Division of Immunology, Department of Pathology,
Faculty of Health Sciences, University of Cape Town; National Health
Laboratory Services Medical Scientist.

Ms Tamanda Kamwendo, PhD Fellow: African Health Flagship, School of Law,
University of KwaZulu-Natal.

Michaela Rae Steytler, LLM Candidate, School of Law, University of
KwaZulu-Natal.

Dr Kirsten Bobrow, Senior Atlantic Fellow and Postdoctoral Researcher,
University of Cape Town and University of California, San Francisco.

Ms Chantelle Green-Thompson, final year LLB student, University of the
Witwatersrand.

-- 
*Lotti Rutter*
Associate Director
International Policy & Advocacy
Health GAP

Cell: +27 82 065 5842 (South Africa)
Phone: +1 347 263 8438 x104 (US)
Twitter: @HealthGAP @lottirutter
Skype: lotti.rutter


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