Enhancing access to pharmaceuticals by regulating the anticompetitive effects of patents in South Africa

Abstract

The South African regulatory framework does not adequately address the interface between intellectual property (IP) and competition law thus rendering patents vulnerable to anti-competitive abuse and missing a critical opportunity to facilitate greater access to pharmaceuticals. This paper dissects policy and regulatory inadequacies from three perspectives. Firstly, by highlighting the slow pace in addressing necessary reform. Particularly in the context of global convergence in IP regulation and policy for nations that are party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Secondly, the disuse of existing regulatory tools and policy instruments. Thirdly, the paper considers the fragmentation and disconnect between the broad set of IP regulators. There is scope to develop fields of work and guiding principles related to the interaction between competition law and intellectual property laws in South Africa to facilitate greater access to pharmaceuticals. To give true meaning to South Africa’s intention to move towards universal healthcare, a collaborative working model between all healthcare, competition and IP regulators to ensure regulatory reform that is fit for purpose and quality universal access to healthcare is required