DOCUMENTS

Activists appeal to Rob Davies to finalise new IPP by July 2014 - TAC

Organisation says further delays are unacceptable, put lives at risk

Activists demand the finalisation of South Africa's Intellectual Property Policy by end of July 2014.

75 organisations sign up to open letter to Minister Rob Davies

CAPE TOWN, 17th June: Today activists from the Treatment Action Campaign (TAC) demonstrated outside Parliament to demand the urgent finalisation of South Africa's Intellectual Property (IP) Policy before the end of July 2014 - almost one year after the publication of the draft policy in the Government Gazette. In contrast to the activities inside Parliament, the activists were dressed in patient gowns and walked a ‘black carpet'. The activists aimed to highlight the reality for many patients across South Africa who are unable to access the medicines they need because they are unavailable, unsuitable or unaffordable.

75 civil society organisations from across the globe signed an open letter to Minister Rob Davies calling on the South African government to finalise and adopt the policy without further delay (full text of the open letter below).

"Healthcare is not a privilege for the few," said the TAC's General Secretary Anele Yawa. "We cannot afford to wait any longer for these critical and long overdue reforms to come into effect. They will dramatically increase affordability of key new HIV, tuberculosis, cancer and hepatitis medicines."

 "The draft policy has already been in development for over six years at the Department of Trade and Industry (DTI)," said Mary-Jane Matsolo from the TAC. "In fact this is now the third South African administration that has presided over the process. The policy has been extensively consulted on. Further delays are unacceptable and are putting lives at risk. If the policy is not finalised by September we will be forced to consider stronger action - including litigation in terms of Section 27 of the Constitution."

The reforms outlined in the IP Policy have the backing of both the African National Congress and the Democratic Alliance. Both these parties committed to finalising the policy rapidly after the elections when they responded to the TAC's ‘People's Health Manifesto' in March this year.

The changes put forward in the draft policy also have vocal support from Minister of Health Aaron Motsoaledi who announced at the closing ceremony of the South African TB Conference last Friday that the policy had not been finalised due to pressures around the election. Now that the election was over he told conference goers he would be making a pro-public health IP policy a priority for the Department of Health.

The TAC will hold these parties and individuals to their commitments. More importantly, we will hold government to account for meeting their Constitutional obligation to institute reasonable legal reforms that will contribute to the realisation of the right to access healthcare.

Open letter from Civil Society groups to Minister Rob Davies and the Newly Appointed Cabinet on the Urgent Need to Finalise and Adopt South Africa's National IP Policy:

We the undersigned, call on Minister Rob Davies and the newly appointed Cabinet to urgently reform South Africa's patent system in line with the Constitutional obligation to take legislative steps to realise the right to health.

Under the leadership of Minister Rob Davies, the Department of Trade and Industry published South Africa's draft National Policy on Intellectual Property (IP) in September 2013. The draft policy proposes a number of critical and long overdue reforms that dramatically increase affordability of medicines and brighten the future of healthcare in South Africa. Minister Davies and the wider Cabinet must now act urgently to finalise and adopt a policy that fulfils Constitutional requirements and makes full use of public health related flexibilities available under international intellectual property law.

South Africa grants an excessive number of pharmaceutical patents - making the country an outlier by international standards. In 2008 alone, South Africa granted 2442 medicine patents, while from 2003-2008 Brazil only granted 273. One of the reasons for excess patenting is that South Africa grants medicine patents without examining them to determine if they meet the country's (already low) standard for what is patentable.

The multinational pharmaceutical industry takes full advantage of this lack of review. By continuously making obvious, minor modifications to existing medicines, or filing patents for new uses of old medicines, pharmaceutical companies are able to continually extend their 20-year patent monopolies. This has lead to South Africans paying unnecessarily high prices for a number of medicines because there is no competition from cost-effective generic suppliers. This is costing the government millions of Rands and is contributing to South Africa's worryingly large pharmaceutical trade deficit. Most importantly it is denying people access to life-saving medicines.

The international legal framework on patents provides countries with various tools to strike a better balance between the private interests of patent holders and the right to affordable access to medicines. South Africa could examine patent applications, set higher criteria for what is deserving of a patent, allow third party oppositions to applications, and ensure flexibility in accessing entirely new drugs that offer a public health benefit. By allowing fewer poor quality patents to be granted through higher standards, opposition procedures, and rigorous examination, South Africa could ensure that generic competitors are able to enter the market sooner. Generic competition has proven to be the most effective way to push prices down to truly affordable levels. Generic competition was the key factor in the massive drop from around R100,000 in 2000 to R1080 today in annual per person costs for year of standard first-line ARV treatment.

The South African government has started to address this issue but continued delays are threatening the fundamental changes needed. South Africa's National IP Policy has been in development for over six years at the Department of Trade and Industry (DTI). This is the third South African administration that has presided over the process. There has been extensive consultation on the draft policy that was released last September - we understand that the DTI received more than 200 submissions on the draft policy. This has not been a rushed process, and no party can claim not to have had an opportunity to provide input.

We cannot afford to wait any longer. Given South Africa's extremely high burden of both communicable and non-communicable diseases, and the continuing rise in healthcare costs, there is a pressing need to take urgent steps to address access to many important medicines.

The reforms proposed in the draft policy are not radical. Each reform is entirely lawful. Each reform is sanctioned by the World Trade Organization, the World Intellectual Property Organization, and the World Health Organization. Each reform is in accordance with international intellectual property law (the TRIPS Agreement). Similar reforms have already been implemented in other countries such as Argentina, Brazil and India. The reforms do not seek to break the patent system and will not remove the incentive to invest in researching truly new and innovative medicines. There is no legal reason to delay the policy and correlative patent law reform any longer. To the contrary, the Constitution demands that reasonable legislative measures that increase access to healthcare must be implemented promptly.

South Africa's ruling party, the African National Congress (ANC), and the main opposition party, the Democratic Alliance (DA), both expressed strong support for reform of South Africa's patent laws before the election. The parties were responding to a question on pro-public health reform of South Africa's patent laws in the Treatment Action Campaign's (TAC) People's Health Manifesto. Furthermore both parties expressed urgency in response to this question.

While we are critical of the length of time this process has taken to date, we hope that the continuity in the Ministry means no further delays will occur. Without major reform of the existing patent system and further investment in critical R&D, many medicines will remain unaffordable, unavailable, and unsuitable across South Africa. Healthcare is not a privilege for the few. The South African government must do all in its power to actively realise the right to health in line with their Constitutional obligations by rapidly finalising and adopting South Africa's National IP Policy without further delay.

Notes:

You can download the full open letter from civil society here.

Previously, in October 2013, over 130 organisations and experts globally called on the South African Department of Trade and Industry to Fix the Patent Law in an open letter found here.

Read the TAC/S27/MSF recommendations for improving the National IP Policy here.

Issued by the Treatment Action Campaign, June 17 2014

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