Promoting Access to Affordable Generics: Reforming South Africa’s Patent Law to Prevent Evergreening

• Citation: (2016) IPLJ 101
• Date: 25 May 2019
• Published date: 25 May 2019
• Author: Stefanie Busch
• Pages: 101-119

101

PROMOTING ACCESS TO

AFFOR DABLE GENERICS:

REFOR MING SOUTH AFRICA’S

PATENT LAW TO PREVENT



*

  

          

patent law regime , which is regulat ed by the Patents Act.1 By evalu ating the dr awbacks

resulting f rom this regi me, which are affec ting public healt h and the count ry’s economy,

this paper wi ll identify t he practice of everg reening as o ne of the main cause s of such

shortcomi ngs. This wr iter will go on to s uggest three m anners in wh ich South Afr ica’s

current pat ent law regime shou ld be reformed in orde r to prevent foreign pha rmaceut ical

companies f rom taking a dvantage of its pate nt laws – and the patent ap plication proces s

            

(i) moving from a dep osit or non-examinat ion system for patent applicatio ns to a substantive

patent exami nation system; (i i) creating a pat ent opposition syst em; and (iii) enac ting an

   

  

Over the past years, South Af rica’s patent laws have come under scrutiny.

Calls for the reform of the regime have been consist ently voiced by the legal

community, as well as the press, ca mpaigns (such as the ‘Fix the Patent Laws!’

campaign) and grassroots a ctivist groups (such as SECTION27, Doctors

Without Borders (MSF) and the Treatment Action Campa ign ( TAC)). In 2013

these pleas for reform were addresse d when the Depart ment of Trade and

Industry publishe d a Draft National Policy on Intellect ual Propert y,2 wherein

the Minister of Trade and Indu stry, Dr Rob Davies, highlighted the imp ortance



     

in.3 Davies went on to suggest various ways the law regard ing intellectua l

property r ights (IPR), including patents, could be reformed to take account of

the needs of a developing country, whilst stil l staying true to the inter national

     

    

1 Patents Act 57 of 1978.

2 R Davies ‘Draft Na tional Policy on Intel lectual P roperty’ (2013) Depar tment of Trade and

Industr y Notice 918 of 2013.

3 Davies (n2) 9.

(2016) IPLJ 101

© Juta and Company (Pty) Ltd

legal framework regarding I PRs, which is established by the Trade-Related

Aspects of Intellectu al Property Rights Agreement ( TRIPS Agreement).4

It is within this context t hat this research paper seeks to focus on the u rgent

need for the reform of South Africa’s current patent law regime, wh ich is

regulated by the Patents Act. By evaluat ing the drawbacks resulting from th is

regime, which are affecti ng public health and the countr y’s economy, this

paper will identif y the practice of evergreeni ng as one of the causes of such

shortcomings. Th is writer will go on to suggest thr ee manners in which South

Africa’s current patent law regime should be reforme d in order to prevent

foreign pharmaceutica l companies from ta king advantage of its patent laws

          

of evergreening. These sugge stions are: (i) moving from a non-exami nation

system for patent applications to a substa ntive patent examination syste m;

           

requirement, as was d one by means of s 3(d) of the Indian Patent A mendment

Act.5

However, the general principles regarding patents , as well as the basic

       

before delving into the main issues at ha nd in this paper, namely the need for

reform due to various short comings of the South Afr ican patent regime and

how such reform could be effected.

  

Intellectual Prop erty is the a rea of the law that concerns itself w ith the

protection of a person’s ideas, forms of expression and inventions. Intellect ual

property r ights (IPRs) can be seen as a governme ntal protection of private

innovation and creativit y, whereby the person holding such a right is gra nted

the power to exclude all others from cer tain activities relat ing to such

intellectual property.6       

new invention which involves an inventive step and which is capable of being

used or applied in trad e or industry or agriculture’.7

          

         8 By recog nising

that technological innovation is exp ensive – as much capital has to be put in

for the research and development (R&D) of a new invention, or the alteri ng

or improvement of a known product – the stat e deems it necessar y to grant

an inventor a zone of economic exclusivity, without which the inventor would

not have the incentive to spend money to develop new inventions.9 Without

4 Agreement on Tra de-Related Aspect s of Intellectual Pr operty Rights ( TRIPS), 1869 UNTS 299.

5 Patents (Amend ment) Act 15 of 2005.

6 E Su ‘Th e winners and the losers: T RIPS and its effects on developi ng countries’ (2000) 23 1

HJIL 172-3 .

7 Patents Act (n1) s 25(1).

8 J Lerner ‘The p atent system in a tim e of turmoil’ (2010) 2 WIPO Journal 2.

9 Ibid.

102 South African Intellectual Property Law Journal (2016) 4

© Juta and Company (Pty) Ltd