COVID-19: The Patent System’s Role in Innovation and Access in South Africa

13 Oct 2020
13 Oct 2020

Patent system’s role

The COVID-19 pandemic highlights the importance of being able to access solutions needed for prevention, testing, contact tracing and treatment. The patent system governs the exclusive rights granted for inventions and has a role in enabling the development and availability of life-saving inventions that are patented and patentable in a manner that is equitable, efficient and affordable.

One of the primary problems that policymakers face concerns balancing the interests of patentees against the interests of third parties and society-at-large. Policy innovations, such as a universal patent which goes beyond the current system based on territoriality and multilateral agreements, could provide new ways to balance competing interests. The combination of universal patents and an international patent system could support efforts to grapple with global challenges, such as pandemics and climate change, to promote the well-being of humanity and the planet. This post briefly considers a few ideas for the South African context.

Access: South African context

In terms of the law, the South African state’s response must be consistent with the constitutional obligations in section 27 of the Constitution of the Republic of South Africa, 1996. The latter provision mandates the state to take reasonable legislative and other measures to achieve the progressive realisation of everyone’s right to have access to health care services.

The Fix the Patent Laws (FTPL) campaign’s open letter expresses concern that South Africa’s patent system will not promote access to medicines and other health products. The campaign encourages the government to take emergency measures to override the patent system to avoid the risks that can arise from the exercise of monopoly rights. Such emergency measures entail proactive steps to prevent supply shortages, price gouging and the emergence of monopolies. The FTPL campaign proposes:

  1. a moratorium of issuing patents for medical products and processes;
  2. automatic compulsory licensing to enable production and supply of technologies without prior notice and negotiation with patentees, who can be compensated through a royalty on sales; and
  3. accelerated amendment of the Patents Act, 1978 in line with the Intellectual Property Policy of the Republic of South Africa Phase 1 and the Doha Declaration on the TRIPS Agreement and Public Health.

Policy reform needs to be expedited because South Africa is lagging in implementing reforms aligned with the commitments in the Doha Declaration and the IP Policy Phase 1, which prioritise improving access to medicines. Notwithstanding the challenges of policy reform and implementation, swift and decisive steps must be taken because the well-being of lives, livelihoods and society depends on it.

By Morite Makola