A critical analysis of the patents Act 57 of 1978 and the reflection on the right of access to medicines : when the right is ‘right’

Abstract

South Africa has a membership of the United Nations, World Trade Organisation, African Union and South African Development Community. Both United Nations’ Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights recognise the protection and promotion of the right to health. The Declaration requires member states to formulate intellectual property laws and policies to protect public health. The 2030 Agenda for Sustainable Development Goals adopted by the United Nations contains plan of action to be implemented by countries such as South Africa. Goal 3 provides for the enjoyment of good health by all. It reinforces the importance of access to medicines. South Africa being one of the developing countries is faced with an unending challenge of access to cheap and affordable medicines. This is exacerbated by pharmaceutical companies using strategic patenting such as filing patents being drugs with minor alterations with intention to block potential competitors from being granted patents of the same drugs. On the same breath the pharmaceutical companies prolong their monopoly for years. Patents Act 57 of 1978, referred to hereafter as “Patents Act”, regulates patents locally. The point of departure is the exorbitant cost of cancer medicines for the majority of patients in the public and private sectors. This led to the formation of the Fix the Patent Laws, a coalition of non-governmental and non-profit organisations advocating for the reform of the Patents Act. The proposed reform is based on the following identified gaps: a) Examination of patents applications to ensure patentability criteria, b) Allow for patent oppositions, c) Prevent evergreening and d) Adopt a procedure for granting compulsory licences. To address these challenges South Africa must tighten the Patents Act to comply with the World Trade Organisation Trade Related Aspects of Intellectual Property Rights Agreement. If the Patents Act is amended, it will offer remedy for anti-competitive behaviour to the Competition Commission of South Africa and the Companies and Intellectual Property Registration Office.