Tweaking Patent Law: Patent Law Policy and Pharmaceutical Patents

• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 1-12
• Author: LTC Harms
• Citation: (2014) IPLJ 1

TW EAK I NG PAT ENT LAW:

PATENT LAW POLICY AND

PHARMACEUTICAL PATENTS*



Former Deput y President, Supreme Cour t of Appeal

Professor, Adams & Adams Ch air in Intellectual Property, Universi ty of Pretoria

He was very suspiciou s of inventors,

for they always meant th at some rule had to be broken .

P Susskind Per fume (20 01)

  

The Constitution recog nises the basic right of access to health care se rvices,

including reproductive health ca re, but the guarantee is subject to a n important

proviso, namely that it is dependent on the st ate’s ‘available resources’ (s 27(1)

(a) and (2)). The effect of this limitation formed the basis of the judg ment in

Soobramoney v Minister of Health ( KwaZulu-Natal),1 which held that the state

had no duty to provide a par ticular patient with expensive dialysis treat ment,

since it would impact negatively on its obligation to supply basic health care

services to the gene ral public. As Chaskalson CJ said (at para 11):

What is appar ent from these provi sions is that the obligat ions imposed on the st ate by sections

26 and 27 in regard to a ccess to housing, health c are, food, water and socia l security are

dependent upon t he resources available for such pu rposes, and that t he corresponding r ights

themselves are li mited by reason of the la ck of resources. Given th is lack of resources and t he

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

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

Since a large proportion of the com munity does not have the resources to pay

for basic health services, the st ate has to carry more than its rea sonable share

of the burden. The state ha s in this regard many challenges, some self-create d:

limited or inapprop riate use of resources; a lack of infrast ructure; the uneven

spread of available health services; pand emics such as HIV/AIDS, tuberculosis

and malaria; li mited training facilit ies; the medical and nursing brain dr ain;

the many claims for medical negligence; and, for prese nt purposes, the cost of

pharmaceut icals.

The high cost of pharma ceuticals, especially those at the cutt ing edge of

medical technology, is laid at the door of the pharm aceutical industry and

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

 

* Based on a presen tation delivered on 3 Apri l 2014 at the South African Intel lectual Proper ty

Conference 2014 (SAIPC 2014) Pretoria .

 

1 [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696.

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(2014) IPLJ 1

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