Strategic Patenting of Pharmaceutical Inventions and the Public’s Right to Access Medicines: The South African Context

Abstract

Pharmaceutical firms’ use of strategic patenting to influence the markets within which their patented inventions sit is legally questionable. Such patenting entails filing patents with the intention of blocking potential competitors from innovating and/or being granted patents within niche technology areas of interest to the patentee. Under this practice, patentees are potentially able to extend the breadth and duration of their monopoly power in the pharmaceutical market sub-sector within which that invention sits. Such practices take on a clear public interest element if they undermine affordable public access to medicines. This thematic report outlines forms of strategic patenting, analyses the degree to which the South African legal system provides remedies against such patenting, and proposes ways forward for South Africa to prevent such practices.