Recently, the Treatment Action Campaign (TAC) has called on the South African government to revise the South African Patents Act to reduce the patent protection available to pharmaceutical inventions, which the organisation believes is responsible for the high cost of medicines and a delay in the availability of generic medicines. TAC refers to the Doha Declaration, which was signed by South Africa as a member of the World Trade Organisation, to support its call.
There is no denying that the impact of diseases such as HIV/AIDS, tuberculosis and malaria on developing countries including South Africa has been devastating. However, amendment of the Patents Act is not necessarily the best or more efficient way forward to deal with this health crisis. In fact, there are already mechanisms in place in both the Patents Act and the Medicines and Related Substances Control Act to address the very concerns raised in the Doha Declaration and provide mechanisms for government to step in and ensure affordable medicines. The problem is that government has not yet been proactive in utilising these mechanisms.
The Doha Declaration provides that member countries are not prevented by membership of the TRIPs Agreement from taking measures to protect public health and that the TRIPs Agreement can be interpreted to protect public health and to promote access to medicines for all.
The Patents Act has a number of sections which may be used by government (or other parties) to give effect to the measures described in the Doha Declaration in relation to the public health issues and access to medicines. These include Section 4, which sets out that a minister of state can use an invention for public purposes on agreed upon conditions, or if there is no agreement, on conditions as are determined by the commissioner of patents on application by the minister and after hearing the patentee. Section 78 sets out that a minister may on behalf of the state, acquire any invention or patent on agreed upon terms and conditions. Section 56 sets out the grounds to apply for a compulsory licence in regard to a patented invention where there has been an abuse of rights by the patentee.
Despite these provisions, very few applications for compulsory licences have been brought to the commissioner of patents.
Furthermore, the Medicines and Related Substances Control Act sets out certain measures which can be applied by the minister of health to ensure supply of more affordable medicines.
As indicated, there are a number of existing mechanisms that can already be used and the government should be lobbied to be more proactive in putting these mechanisms to use to provide more affordable access to medicines.
 |
| Joanne van Harmelen
|
Spoor & Fisher Jersey
Africa House, Castle Street
St Helier, Jersey JE4 9TW
Channel Islands
Tel: +44 1534 838000
Fax: +44 1534 838001
info@spoor.co.uk
www.spoor.com