Pharmaceutical patents and public health: facilitating access to affordable medicines in South Africa through trips flexibilities

Abstract

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) aims to strike a balance between the protection of creators and providing access to creative works to users of same. South Africa, as a member of the World Trade Organisation (WTO), has the flexibility to define its policy space in an internationally recognised and compliant manner to achieve an equilibrium between upholding public interest objectives and the private interests of patent holders in the field of health. South Africa has taken steps over the years to revise its medicine and intellectual property (IP) policies to address the issue of medicine access; however, implementation of reform is hampered by resource and capacity constraints, as well as economic and political pressures. As a result, the exorbitant pricing of pharmaceutical patented products continues to have an impact on the availability of essential medicines in South Africa. This report examines the functioning of the patents system in South Africa as it relates to the granting of pharmaceutical patents. The report discusses the link between intellectual property rights (IPRs) and public health and how the patent system can create barriers to access to affordable medicines. This report contends that the current patent climate exists due to shortcomings in South Africa’s Patent Act of 57 of 1978 (Patents Act) and its under-utilisation of TRIPS flexibilities. Pharmaceutical companies have exploited the current patent regime through evergreening and other abusive practises, resulting in the postponement of off-patent drugs and stifled competition, ultimately at the expense of public health. This report seeks to determine the extent to which South Africa has implemented TRIPS flexibilities in promoting access to affordable medicines in the realm of pharmaceutical patents, as well as whether South Africa can strike a balance between protecting pharmaceutical innovation and public health. It concludes by looking at how competition policy can be used to correct the imbalance and suggests that a focused and convergent approach to capacity building and transnational collaboration be employed.