Enforcing Patent Rights against Goods in Transit: A New Threat to Transborder Trade in Generic Medicines

• Jurisdiction: South Africa
• Author: Caroline B Ncube
• Date: 25 May 2019
• Pages: 680-694
• Published date: 25 May 2019

Enforcing Patent Rights against Goods in

Transit: ANew Threat to Transborder Trade in

Generic Medicines

CAROLINE B NCUBE*

University of Cape Town

‘IP rights – especially patents – are tools for economic advancement that should contribute to

the enrichment of society through (i) the widest possible availability of new and useful goods,

services and technical information that derive from inventive activity, and (ii) the highest

possible level of economic activity based on the production, circulation and further

development of such goods, services and information.’

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1 Introduction

Intellectual property (IP) protection has critical consequences for trans-

national trade in generic medicines, one of South Africa’s most important

imports. The free transit of generic medicines, unhindered by patent claims, is

essential for their importation into South Africa where they will be deployed

to prolong or save lives. This article will discuss the import of using Council

Regulation (EC) No 1383/2003

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to halt the transit of generic medicines en

route to developing countries. Dutch customs authorities have done this on

several occasions, eg, in February 2009. Such action forces importing and

exporting states to f‌ind alternative routes that may be more expensive and take

longer than a route that traverses Dutch ports. Such a situation would

obviously be contrary to the freedom of transit provided for by art 5 of the

General Agreement on Tariffs and Trade (GATT).

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Secondly, when

consignments of medication do not reach their destinations, lives may be lost.

This reverses the gains of the major battles won in South Africa and other

developing countries to improve access to generic medicines. Thirdly, using

patents to block, or delay, the provision of generic medication to ill people is

unacceptable, because it violates the very foundations of, or justif‌ications for,

patent law. As shown by the quotation above, patents are intended to secure

the public good, by enabling the production of, and trade in, useful goods.

This article is in seven sections, this introduction being the f‌irst. The second

* LLB (UZ) LLM (Cantab). Lecturer, Department of Commercial Law, University of Cape Town.

E-mail: caroline.ncube@uct.ac.za.

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Graham Dutf‌ield Intellectual Property Rights and the Life Science Industries (2003) at 27.

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Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods

suspected of infringing certain intellectual property rights and the measures to be taken against

goods found to have infringed such rights, (2003) OJ L 196/7.

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General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing

the World Trade Organization, Annex 1A, The legal texts: the results of the Uruguay round of

multilateral trade negotiations 17 (1999), 1867 UNTS 187, 33 ILM 1153 (1994).

680

(2009) 21 SA Merc LJ 680

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