[Ip-health] SCP25: Statement of the Republic of South Africa on Patents and Health

Thiru Balasubramaniam thiru at keionline.org
Tue Dec 13 08:54:11 PST 2016


SCP25: Statement of the Republic of South Africa on Patents and Health

Submitted by thiru on 13. December 2016 - 18:49

On Tuesday, 13 December 2016, the Republic of South Africa delivered the
following statement during the WIPO Standing Committee on the Law of
Patents (SCP) discussions on patents and health.

WIPO Standing Committee on the Law of Patents (SCP) 13 December 2016

Madam Chair

South Africa aligns itself with the statement delivered by Nigeria on
behalf of the Africa Group.

Please allow me Madam Chair to preface my statement by following other
delegations and reminding this august gathering that through the adoption
of the United Nations 2030 Agenda for Sustainable Development, all
countries committed themselves to achieving universal health care where
everybody is supposed to receive their required health services not
hindered by their financial status. In this regard, SDG Goal 3 states:

“Ensure healthy lives and promote well-being for all at all ages” and SDG
target 3.8 requires that the international community should strive to
“Achieve universal health coverage, including financial risk protection,
access to quality essential health care services and access to safe,
effective, quality and affordable essential medicines and vaccines for all”

Madam Chair,

A paper on Universal Health Coverage published in May 2016 by the Elders, a
group of independent international leaders convened by former South African
president Nelson Mandela in 2007 to use their collective experience and
influence for peace, justice and human rights worldwide, paints a very dire
picture. It notes that although universal health coverage is a commitment
of every UN Member State, the realities on the ground do not reflect this

“However, across the world, hundreds of millions of people are currently
denied lifesaving health services or are plunged into poverty because they
are forced to pay unfordable fees for their care. This burden is
particularly felt by women, children and adolescents, who often have high
needs for health but least access to financial resources. In some
instances, women and babies are even being imprisoned in health units
because they cannot pay their medical bills. This represents a cross
violation of their basic human rights”

Madam Chair,

While the report identifies political commitment at the national level as
one essential element for the implementation of universal health coverage
as mandated by SDG 8, as a remedy to the problems articulated by the Elders
above, the UN Secretary General’s High Level Panel on Innovation and Access
to Health Technologies, which was convened by the outgoing UNSG and
mandated “to review and assess proposals and recommend solutions for
remedying the policy incoherence between the justifiable rights of
inventors, international human rights law, trade rules and public health in
the context of health technologies” points to serious impediments to
achieving the noble goal of health for all, impediments which are brought
about, in one way or another, by factors related to intellectual property,
patents, in particular.

For example, the report notes that many governments have not used
flexibilities available under the TRIPs Agreement for various reasons
ranging from capacity constraints to undue political and economic pressure
form states and corporations, both express and implied. The Panel concludes
that political and economic pressure placed on governments to forgo the use
of TRIPs flexibilities violates the integrity and legitimacy of the system
of legal rights and duties created by the TRIPS Agreement and reaffirmed by
the Doha Declaration. (We will elaborate further on how our own country was
a victim of this pressure in our exchange of experience presentation).

The Panel recommends that:

Countries should make full use of the flexibilities enshrined in the TRIPS
Agreement, and use the policy space available in Article 27 of TRIPS “by
adopting and applying rigorous definitions of invention and patentability
that are in the best interests of the public health of the country,”
including amending laws to curtail the ever-greening of patents and
awarding patents only when genuine invention has occurred.

The United Nations Conference on Trade and Development (UNCTAD), the United
Nations Development Programme, (UNDP), the World Health Organisation (WHO),
the World Intellectual Property Organisation (WIPO) and the World Trade
Organisation (WTO) should cooperate with one another and with other
relevant bodies with the requisite expertise to support governments to
apply public health sensitive patentability criteria.

These multilateral organisations should strengthen the capacity of patent
examiners at both national and regional levels to apply rigorous public
health-sensitive standards of patentability taking into account public
health needs.

Finally, Madam Chair,

The Report is a rich repository and reference document and we believe that
the implementation of its recommendations and other intellectual property
and health related recommendations, as articulated in the Africa Group’s
proposal, document SCP/24/4 has the potential to minimize this unfortunate
situation where women and babies are being imprisoned in health units,
anywhere in the world, because they cannot pay their medical bills.

We welcome further dialogue and contributions from other Member States on
how we can make this dream become a reality.
I thank you

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