This week South Africa is hosting a World Intellectual Property Organization (WIPO) conference titled “Respect for IP – Growing from the Tip of Africa. Amongst others this conference will discuss “how intellectual property crime can be treated with higher priority by police authorities to ensure the safety of the public.”
We are disturbed by the insensitivity and tone-deafness of hosting such a meeting in South Africa, a country where excessive respect for intellectual property (IP) meant that HIV medicines remained excessively priced at a time when people were dying of the disease in large numbers. A country infamously sued by 39 international drug companies for attempting to improve access to affordable medicines in 1999.
There is ample evidence that South Africa’s legal framework currently provides too much respect for intellectual property. A 2011 University of Pretoria paper found that as many as 80% of patents granted in South Africa do not meet the country’s legal criteria for patentability. A 2012 research report found that when presented with the same set of patent applications, South Africa typically grants around 66% more patents than the United States or European Union.
We have so much respect for intellectual property in South Africa that at present we grant patents without examining whether the patents are merited. Government has finally started a process to institute a patent examination system, but this will take time to get off the ground. For now, we continue to give away patents without scrutiny.
A recent report released by the Fix the Patent Laws campaign exposed the excessive patenting of cancer medicines. 92 secondary patents were found on just 24 cancer medicines in South Africa, 39 of which had been rejected or withdrawn in at least one other country. This impacts on both affordability and availability in the country. 15 out of the 24 medicines were found to be available in India for half the price than South Africa – and in some far less. In the most extreme case, a year’s supply of lenalidomide is priced at ZAR 882,000 in South Africa and less than ZAR 32,000 in India. These high prices mean that out of the 24 medicines, only 7 are available in the public sector. This excessive respect for intellectual property has real-world consequences for normal people like Sue Johnson and Tobeka Daki, leaders in our campaign who passed away without access to certain lifesaving cancer medicines.
South Africa has also never issued a compulsory license on a medicine, not even at the height of the AIDS epidemic in the mid-2000s, despite the fact that we could legally have done so under World Trade Organisation (WTO) rules.
With Cabinet’s recent adoption of Phase I of the National Intellectual Property Policy, there is finally reason to hope that government will find a better balance between respect for human life and the private interests of pharmaceutical companies. Finding this better and more humane balance within the framework of current WTO rules is possible, as has been shown in countries like India and Argentina. In practical terms this better balance involves: Introducing a patent examination system, raising the bar for what deserves a patent to ensure only true inventions are rewarded, introducing more workable compulsory licensing procedures, and providing simple procedures for any interested party to challenge the grant of a patent. South Africa urgently needs to reform its Patents Act to introduce these changes.
We urge the South African government, and all other governments, to place respect for human life and the right to healthcare services ahead of the WIPO agenda that prioritises the enforcement of IP held by multinational companies. This is in line with the rights and obligations enshrined in our Constitution, which requires the state to respect, protect, promote and fulfil the Bill of Rights. It is also in line with common human decency.
Published on Fix The Patent Laws
The Fix the Patent Laws Coalition is a coalition of 40 patient groups and civil society organisations representing most major diseases areas in South Africa. The coalition was founded in 2011 by the Treatment Action Campaign (TAC), SECTION27 and Doctors without Borders (MSF). We advocate for reform to South Africa’s patent laws that will ensure wider and more affordable access to medicines.