Here on Techdirt we've written a number of times about India's efforts
to provide key drugs to its population at prices that they can afford, and how its approach is beginning to spread
to other countries. That's a big worry for Western pharma companies, which see their business model of selling medicines at high prices threatened by newly-assertive nations. The latest to join that club is South Africa.
As Brook Baker explains on infojustice.org, the "current South African patent regime is a PhRMA dream":
virtually every drug company patent filed in South Africa, so long as the applicant can fill out the form and pay the filing fee, will be and is granted. No one -- I mean no one -- double checks whether a patent application has any merit whatsoever. No one checks if alleged innovation is in fact new or well known under existing industry practice. No one checks if the patent application impermissively makes numerous claims or duplicates claims made previously. Pfizer could get a patent on a peanut butter and jelly sandwich tomorrow if it wanted to.
But all that is about to change, thanks to a comprehensive reform of the South African patent system. Here's what would happen in the realm of pharma, as described by Baker:
What PhRMA [Pharmaceutical Researchers and Manufacturers of America] doesn't like about the proposed SA reform that SA Draft IP Policy recommends: (1) tightening up patenting standards, (2) examining patent applications vigorously, (3) allowing other parties to oppose patent applications, (4) limiting patent terms to 20 years only, no extensions, (5) disallowing monopolies based on data/registration exclusivity and patent/registration linkage, and (6) adopting easier to use parallel importation and compulsory license mechanisms. Each and every one of these provisions is lawful; each and every one is acknowledged by international bodies including WIPO, the WTO, UNDP, UNAIDS, WHO and others; each and every one is a wise exercise of public authority that -- in accordance with the Doha Declaration on TRIPS and Public Health -- prioritizes public health and access to medicine for all.
Of course, the big pharma companies are preparing to put up a fight against this move. One suggested approach, contained in a document entitled, "Campaign to Prevent Damage to Innovation from the Proposed Draft National IP Policy in South Africa," backfired badly when it was leaked by a public-spirited whistleblower to the South African Mail & Guardian newspaper. Here's the reaction of a senior South African politician after having read it:
Health Minister Aaron Motsoaledi has accused a group of multinational pharmaceutical companies active in South Africa of conspiring against the state, the people of South Africa and the populations of developing countries -- and of planning what amounts to mass murder.
Understandably, the pharma companies have backed away from that particular campaign, but as KEI reports, they certainly haven't given up. Nor are they likely to, because the stakes are high. The campaign document explains why quite clearly (pdf):
"I am not using strong words; I am using appropriate words. This is genocide," Motsoaledi told the Mail & Guardian on Thursday, in response to a plan he described as a conspiracy of "satanic magnitude" -- a plan he called on all South Africans to fight "to the last drop of their blood".
South Africa is now ground zero for the debate on the value of strong IP protection. If the battle is lost here, the effects will resonate. Clearly [Médecins Sans Frontières] and similar NGOs understand that. A robust public affairs program is necessary to create the environment for a sensible IP policy to be adopted by the [South African] Cabinet and implemented through legislative processes. This program is meant to support -- and lead -- direct lobbying efforts. Without a vigorous campaign, opponents of strong IP will prevail -- not just in South Africa but eventually in much of the rest of the developing world.
In other words, expect the battle over pharma patents in South Africa to turn pretty nasty.
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