HEALTH activists on Thursday called on the Department of Trade and Industry to drive through sweeping patent law reforms which they say are needed to bring down the cost of medicines, as the deadline closed for comments on its draft intellectual property policy.
While the draft policy was criticised by Stellenbosch University’s intellectual property law unit, which described it as unsystematic, confusing and riddled with errors, health activists and pharmaceutical multinationals have nevertheless seized the opportunity to lobby for their position.
The stakes are high, with Médecins Sans Frontières (MSF) and the Treatment Action Campaign (TAC) pushing for changes that they say will increase competition and drive down medicine prices, while the Innovative Pharmaceutical Association of SA (Ipasa) is arguing that there are already many provisions in South Africa’s laws that facilitate access to generic medicines.
"This policy is not just about legal technicalities. It will directly affect the health and lives of many millions of people. By fixing the patent laws, South Africa can lower prices of existing medicines and create incentives for the development of new and improved treatments to tackle the diseases people live with every day," said the TAC’s Gauteng secretary, Andrew Mosane.
The joint TAC-MSF submission said South Africa paid "artificially high" prices for medicines because it "blindly handed out patents" without examining applications to see if they met the criteria defined in the Patents Act. "This allows pharmaceutical companies to get multiple patents on the same medicine by making small changes, even when such changes have no benefit for patients."
Ipasa spokeswoman Val Beaumont said most of the patents granted in South Africa for medicines made by multinational pharmaceutical companies had already been subjected to substantive examination in other jurisdictions. "Ipasa supports the concept of granting strong patents. What is of concern to us is that the introduction of such a system could result in unintended delays in the registration of patents."
The activists’ submission was accompanied by an open letter signed by more than 130 academics, advocacy groups and civil society organisations from around the world supporting their position. Changes to South Africa’s laws were needed to prevent excessive patenting and other barriers to generic entry to the market, and thus drive price competition, they said.
In addition to a patent examination system, the activists are calling for measures to allow opposition before and after patents are granted, and greater public access to information about patent applications.
They also want reforms to make it easier for the government to use provisions in the World Trade Organisation’s agreement on "trade-related aspects of intellectual property rights" to issue compulsory licences and allow parallel importation of medicines.
Although there are provisions in the current Medicines Act that allow compulsory licensing, the activists say it would cost so much money and take so long to get one issued that it is not practical to do so.
Ms Beaumont said Ipasa was concerned that pre-and post-grant objections could provide the opportunity for "frivolous" opposition.