[Ip-health] Pharmalot: South Africa Embraces Compulsory Licensing Over AIDS Crisis

Joanna Keenan-Siciliano joanna.l.keenan at gmail.com
Mon Nov 11 03:37:02 PST 2013


South Africa Embraces Compulsory Licensing Over AIDS Crisis

Posted Fri, 11/08/2013 - 7:58am by Ed Silverman


Two months after releasing a draft policy for governing intellectual
property, South Africa has decided to amend its patent legislation so the
government can use parallel importing and compulsory licensing that is
allowed under international agreements, according to a statement by Rob
Davies, who is National Policy on Intellectual Property, Trade and Industry
Minister (here is the draft policy and here is the statement).

The move comes after patient advocacy groups complained that South Africa
has not amended its patent laws to incorporate or implement the 2001 WTO
agreement on Trade Related Aspects of Intellectual Property Rights, or
TRIPS, which offers compulsory licensing as an option to countries to make
patented drugs more affordable for citizens.

The issue was raised in order to make it possible for other companies to
sell lower-cost HIV and AIDS medications, since the country has one of the
highest infection rates in the world. Patient advocacy groups such as
Doctors Without Borders and Treatment Action Campaign have waged an
aggressive campaign to convince the South African government to take such

“We are the world capital of HIV/AIDS, we have a serious burden of TB
linked to that… and we have to have the freedom and ability to use the
policy space that’s been made available to us under TRIPS and public health
for us to take that option,” Davies told a media briefing, according to
Business Day.

“Although we’ve been a major champion of all these processes
internationally we haven’t necessarily incorporated them into domestic law.
That’s one of the issues that we need to follow through. I’ve interacted
with a few of the patent medicine manufacturers, saying to them ‘we are not
doing anything that you won’t be familiar with in other jurisdictions.’”

The effort comes more than a decade after South Africa figured prominently
in the battle over AIDS drugs. More than a dozen global drugmakers filed a
lawsuit to prevent the country from allowing low-cost generics of AIDS
medicines to be made, a move that backfired when the pharmaceutical
industry encountered widespread criticism for a strategy that emphasized
profits at the expense of a growing population of very ill people.

In its statement, the ministry also says that “there is no patent extension
or restoration, but we are under pressure to provide for such. In this
regard, an initial recommendation is that there should be no patent
extension/restoration as there is no standardized timelines in the world to
deal with common granting standards. Until such time that harmonization
takes place, it would be difficult for South Africa to introduce patent
extension or restoration.”

As for parallel imports, the current patent law does not mention
prescription drug pricing, but the proposed policy will do so, and grants
and incentives may be introduced in order to encourage innovation by the
domestic pharmaceutical industry through the policy options available to
member states of WTO, according to the ministry statement.

We asked the Innovative Pharmaceutical Association South Africa, the
industry trade group, for a response and will update you accordingly.

Joanna Keenan
Press Officer
Médecins Sans Frontières - Access Campaign
P: +41 22 849 87 45
M: +41 79 203 13 02
E: joanna.keenan[at]geneva.msf.org
T: twitter.com/joanna_keenan


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