More than 80 leading academics, teachers and researchers have written to the President surrounding the need to make changes to South Africa’s patent law, particularly around issues pertaining to COVID-19. It details their urges to the President to engage in a process of law reform- something to which his offices have already committed, although progress in this regard has been slow. The letter relates to both existing and prospective patented and patentable equipment that may be used to combat or mitigate the effects of the pandemic and includes products such as respirators and personal protective equipment (PPE) as well as diagnostic testing equipment and medicines.
The writers of the letter call on the President to make equipment available to all who need it, in line with both national and international imperatives- especially with regard to substantive examination of patent applications, lawful flexibility, and patentability criteria. The concern of the writers of the letters is that much of the equipment needed in the fight against the virus has been rendered unaffordable due to patenting- making it out of reach for many who need it. The writers express concern that in our current law, there is no requirement for substantive examination of patents to ensure they meet the requirements to be granted a patent which allows for loopholes such as patent evergreening which extends patent monopolies beyond 20 years and blocks entry of generic products.
These generics can be more affordable thus making the products more accessible. The writers also highlight that our current law also compromises supply security in South Africa- this has happened in many instances in the pharmaceutical domain in respect of medical conditions but is a problem that can be solved as was the case with antiretrovirals, where introduction of generics made treatment affordable and thus accessible. In 2018, the writers articulate, Cabinet approved the Intellectual Policy of the Republic of South Africa Phase 1. It has now been two years since the approval but the relevant legislation has still not come before Parliament.
The writers thus call for the draft legislation to be tabled expeditiously. In addition to this, the writers call upon the president to take special measures to ensure affordable access to COVID-19-related items. This could include a CIPC moratorium on the issue of patents over such products or compulsory licensing.
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Image Credit: United Nations COVID-19 Response
