[Ip-health] South Africa: DTI’s draft IP policy lays foundation to prevent abusive patenting

Lotti Rutter lotti.rutter at mail.tac.org.za
Mon Sep 9 04:05:18 PDT 2013


*Health groups call for wide public consultation *

Johannesburg, 9 September – The Treatment Action Campaign (TAC), Doctors
Without Borders (MSF) and SECTION27 welcome the announcement that the
Department of Trade and Industry (DTI) has called for public comment on the
long-overdue draft National Policy on Intellectual Property (IP). The DTI
has taken heed of  calls for urgent reform, by offering numerous
recommendations to prevent the patent system from having a detrimental
impact on public health.

This policy is not just about legal technicalities, but will affect the
lives of many people living in South Africa. It will have an impact on the
ability of medical aid schemes to pay for new cancer medicines for their
members. It will determine whether MSF can provide key multi-drug resistant
tuberculosis medicines in their treatment programmes. It will play a key
role ensuring that the over five million HIV-positive people in South
Africa can access the latest generation of anti-retroviral medicines.

While the policy consultation is only the start of the legislative process,
the principles outlined in the document set the stage for changes that
promise to increase competition in the pharmaceutical sector and lower the
price of medicines in South Africa.

A key challenge noted by the policy is, that at present, South Africa does
not examine patent applications—instead, the current system allows
pharmaceutical companies to obtain multiple patents on the same drug, even
for inventions that do not fall under the country’s definition of
innovation. This allows companies to extend the life of their monopolies,
block competition from generic manufacturers, and charge inflated prices
for medicines in both the public and private sector. To remedy this, the
policy notes that South Africa should set a higher standard for innovation,
so patents are not granted for simply combining existing medicines, or
registering new uses for previously patented drugs. At the same time, the
policy notes the need for a substantive patent examination system, which
should better ensure criteria for granting a patent is upheld.

The draft policy lays the foundation for a new IP system which, if properly
implemented, could allow the DTI to promote legislation that realises the
Constitutional right to healthcare. For example, the draft policy states in
strong terms that South Africa should not be party to trade agreements with
provisions that would undermine the right to health. We welcome such
announcements as positive indications that the DTI is on the road to
meaningful reform. We encourage the DTI to stand by these statements, even
if multinational pharmaceutical companies attack such ideas.

TAC, MSF and SECTION27 are confident that this draft policy provides the
framework for South Africa to uphold prior commitments made within the
South African Development Community (SADC), African Union and across the
BRICS region to utilise legal flexibilities outlined in the World Trade
Organization’s agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS). South Africa can also look to its BRICS and African
contemporaries to inform its own process of national patent law reform.
India and China already have provisions within national laws that protect
public health, many of which have come into force in the last decade. Legal
reform efforts are currently underway in Brazil, as well as in Zambia and
Uganda – these countries are considering adopting higher standards of
patentability similar to India, as well as other reforms similar to those
envisioned in the DTI draft policy.

In addition to studying the draft policy in greater detail and compiling
comments, MSF, TAC and SECTION27 intend to consult widely with our members,
interested members of the public, academics, and other partner
organisations, as well as the DTI, to further inform our submissions. We
also encourage the DTI to widely publicise any consultations the Ministry
hosts during the comment period, and to invite a broad range of
stakeholders to ensure adequate public education on this complex and
far-reaching policy. Our organisations look forward to working in closer
collaboration with the DTI going forward. Further development of this
promising policy can identify and redress current administrative and legal
imbalances in the patent system. Ultimately, this can influence future
legislation that no longer favours pharmaceutical companies’ profits over
public health.

Details on the consultation process and upcoming public meetings organized
by TAC, MSF and SECTION27 will be posted at www.fixthepatentlaws.org.

Notes to Editors:

*For almost two years, TAC and MSF have called for several key reforms to
the country’s IP laws, including, but not limited to:*

(1) Rapid adoption and implementation of a substantive examination system
for all pharmaceutical patent applications, as required by Section 34 of
the Patents Act;

(2) Strengthening patentability criteria to prevent patent evergreening and
promote high standards of medical innovation;

(3) Enhancing public transparency of the Patents Office concerning pending
patent applications and the status and content of granted patents, with
prioritisation placed on pharmaceutical patents;

(4) Allowing a broad range of third parties to file pre-grant and
post-grant patent oppositions;

(5) Broadening the grounds and facilitating the procedures for issuing a
compulsory license when pharmaceutical products are priced beyond the reach
of South Africans;

(6) Allowing a research exception, so advances in the field of medicine are
not hindered by the inability to conduct research using patented
pharmaceutical products in clinical trials or the development of new drugs.

*Available spokespeople:*

Julia Hill, MSF

Marcus Low, Treatment Action Campaign (TAC)

Umunyana Rugege, SECTION 27

*For further information or to arrange interviews:*

Kate Ribet, Media Liaison Officer, MSF SA

kate.ribet at joburg.msf.org | 079 872 2950 | www.msf.org.za


*Lotti Rutter*

Senior Researcher****

Policy, Communications and Research****

** **

Treatment Action Campaign****

Tel: 021 422 1700****

Cell: 081 818 8493****

Skype: lotti.rutter****

Twitter: @FixPatentLaw****

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