The Treatment Action Campaign (TAC) is based in South Africa and advocates for increased access to treatment, care and support services for people living with HIV and organizes campaigns to reduce new HIV infections.
The aim of TAC’s Fix the Patent Laws campaign is to put pressure on government to urgently amend its Intellectual Properties (IP) legislation (including both the Patents Act 57 of 1978 and Medicines and Related Substances Control Amendment Act of 1997) to fully adopt the flexibilities allowed under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) to protect public health. The TAC, Doctors Without Borders (MSF) and SECTION27 have been campaigning to Fix the Patent Laws in South Africa since November 2011.
South Africa, a country with the largest number of people living with HIV in the world, a burgeoning TB epidemic, and other public health crises such as diabetes, heart disease, and cancer, has remarkably strict intellectual property restrictions. Currently South Africa grants an excessive number of pharmaceutical patents—more than most developed or developing countries— without examining applications to determine their validity. The current system allows companies to file patents for new uses of medicines, or make obvious minor improvements or modifications to a known drug, in order to gain a secondary patent on the existing compound. This is a process known as “ever-greening” that has become increasingly prolific in recent years. Excessive patenting delays the entry of affordable generic medicines to the market for extended periods of time. The current laws put the rights of the patent-holder before the rights of the people.
Throughout the campaign TAC has been working to build pressure on the government to urgently amend South Africa’s IP legislation, as well as build public knowledge of the problems with the existing laws. In September 2013, after five years of development, the Department of Trade and Industry (DTI) finally released the Draft National Policy on Intellectual Property (DNPIP) for public comment. Although lacking somewhat in substance and clarity, TAC publicly welcomed the DNPIP as it proposed several mechanisms to limit the negative impact of IP on public health. The TAC, together with MSF and SECTION27, developed a robust and detailed set of policy recommendations in order to improve the content of the DNPIP and inform the legislative drafting Is process. Through this campaign, TAC will continue to build pressure on the government to urgently adopt TRIPS flexibilities into national legislation and amend existing provisions to ensure they are practically feasible to implement, leading to improved access to affordable medicines, saving the lives of millions of people across South Africa.
TAC and partner organisation have been working extensively to educate the public on IP issues through running public consultations and workshops on the DNPIP, as well as through various published materials like the Fix the Patent Laws Activist Guide.
If South Africa amended its patent system to include a substantive examination system fewer patents would be granted. Additionally, South Africa can use flexibilities allowed under TRIPS, including setting strict patentability standards and establishing a pre- and post-grant opposition mechanism, to ensure only true innovation is rewarded. This would lead to a drop in the cost of, and improved access to, medicines in both the public and private sectors. Furthermore, when legitimate patents result in medicines being priced out of reach, actions that mitigate high prices, such as compulsory licensing, must be practically feasible to implement to ensure accessibility.
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