The time to Fix South Africa’s Patent Laws is now!
Activists from the Fix The Patent Laws Campaign will march to the Department of Trade, Industry and Competition (DTIC) today 9 November 2021 to urge the government to reform our intellectual property laws to enable improved access to lifesaving medicines for COVID-19 and other life-threatening diseases.
Patents have acted as a barrier to equitable and affordable access to medicines for HIV, tuberculosis, mental health, diabetes and cancer. Activists will be holding crosses and a ceremonial coffin to commemorate all the people who have needlessly lost their lives because expensive patented medicines remained out of reach. A full course of bendamustine to treat lymphoma cancer, for example, costs R50,616 per person and is unavailable in the public sector because of its price. Generics for this medicine in India cost only R9,024, but because of our outdated patent laws, prices are out of reach for thousands who need the medicines.
Whilst the South African government has acknowledged Intellectual Property as a barrier to improved access to COVID-19 health technologies and initiated the TRIPS Waiver proposal, there has been no urgency locally to expedite the process of reforming our domestic patent
Fix the Patent Laws Campaign calls on Minister of Trade, Industry and Competition Ebrahim Patel to:
- Immediately publish the amendments to the Patents Act drafted by the DTIC for public comment.
- Use your constitutional powers to, for the first time, issue compulsory licenses for COVID-19 treatments and vaccines;
- Review the legal status of patent applications on all COVID-19 medical technologies, including granted or pending applications on Moderna’s mRNA vaccine;
- Provide strict examination of all patents for pharmaceutical products, now and in future, so that patents are not automatically granted for life-saving medicines, which limits supply and increases prices of these medicines.
- Develop an easy to use the administrative process to enable third party organisations to challenge pharmaceutical patents, which the current system does not allow.
These are some of the demands that will be handed over in a memorandum to the DTIC by activists at the protest on 9 November. Although the South African government is championing the need for equitable access to COVID-19 treatments and vaccines at the World Trade Organisation through the TRIPS Waiver - a proposed waiver on all patents and intellectual property mechanisms for COVID-19 medical technologies for the duration of the pandemic - we need domestic legal reforms urgently.
The TRIPS Waiver, should it be adopted by the World Trade Organisation, is not self-executing - South Africa would need to table legislative reforms to the Patents and Copyright Acts in order to implement the TRIPS waiver locally. These reforms are just a small part of what needs to change about South Africa’s intellectual property regime, and we need patent reform not only for this pandemic, but for good.
Patents restrict affordable access to drugs for TB, cancer, hepatitis, diabetes, mental health conditions and contraceptives, among others. Patents put the profit-seeking interests of pharmaceutical companies over people’s rights and lives. We need lasting reform so that people can access life-saving medicines NOW!
Reject Moderna’s mRNA monopoly!
Activists are highly concerned that patents are also limiting equitable access to COVID-19 vaccines and treatments. Despite not registering their mRNA vaccine with the South African Health Products Regulatory Authority (SAHPRA) or delivering one single vaccine dose to Africa, Moderna has had at least two patents accepted by the South African Patents Office.
These patents, which include broad protection for components of mRNA vaccines, have been rejected by at least 11 countries because the patents would unreasonably limit access to life-saving medicine. In South Africa, these patents were automatically accepted because we do not have a patent examination system. FTPL calls on the government to use this pandemic as an opportunity to strengthen our patent examination system on pharmaceutical patents so that we put people and public health first!
Moderna’s patents could jeopardise the success of the World Health Organisation (WHO) and South African Government’s attempt to develop a global mRNA Technology Transfer Hub, which is hoped to facilitate technology transfer to countries in the global south to enable self-reliance and local production of mRNA vaccines.
Moderna claims that the pandemic will be over within the year. This will only be possible if every country gets access to vaccines affordably and quickly, and patents on Moderna’s vaccines limit supply and push prices of their vaccine up. What is more, should the pandemic continue for longer - which is what scientists predict - there will be a need for booster shots. The patents granted to Moderna in South Africa mean that should Moderna ever file its vaccine with SAHPRA, it will already be patented, and we will not be able to manufacture low-cost generics or develop manufacturing capacity through the Tech Transfer Hub.
Publish draft legislation NOW!
Minister Patel, we need a Bill now! While the TRIPS Waiver is an important step towards equitable access to COVID-19 medical tools, it is not enough: we need domestic reforms to implement it when it gets adopted, but also so that we can have equitable and affordable access to all medicines, not just ones for COVID-19. Fix the Patents Laws has been campaigning about intellectual property law reforms for over ten years now: the time for substantive law reforms and access to medicines is long overdue. Delays lead to preventable deaths, and patients deserve better.