The Treatment Action Campaign (TAC) calls on government to amend South Africa's Patents Act and protect our right to health
(Cape Town) - Ten years ago this week, member countries of the World Trade Organisation (WTO) signed the Declaration on the TRIPS Agreement and Public Health ("the Doha Declaration"). Members were gathered in Doha to discuss valid concerns that an international agreement to protect intellectual property - the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS)[1] - would undermine the ability of countries to achieve the right to health.
The Doha Declaration confirmed provisions within the TRIPS agreement that countries could use to protect public health. It states that the TRIPS agreement "should not prevent Members from taking measures to protect public health... and should be interpreted in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicine for all."
In order for countries to use the public health flexibilities contained within the TRIPS agreement and the Doha Declaration, they must be enacted into national legislation. "Despite significant health burdens in the decade since the Doha Declaration, very few developing countries have amended their laws to fully utilise the flexibilities to protect health," said Mara Kardas-Nelson of MSF's Campaign for Access to Essential Medicines. "While it is the responsibility of individual states to ensure that TRIPS flexibilities are included within national law and utilized to protect public health, we have also witnessed consistent and aggressive bullying by the European Union, the United States and pharmaceutical companies to prevent developing countries from using these life-saving flexibilities."
Middle-income countries were given until 2005 to enact TRIPS-compliant national legislation which ensured 20-year patent protection on pharmaceuticals. "If it had not been for this window period where middle-income countries could produce generic versions of antiretroviral therapy (ART), India could not have produced high-quality, low-cost ART. As a result of generic competition, we saw the cost of a first-line ART regimen drop by 99% in a decade. Without this price decrease, millions of people would not have access to these life-saving drugs," said Dr. Gilles Van Cutsem, MSF's Medical Coordinator for South Africa and Lesotho. "But that window period is now closed and we are deeply concerned about the lack of options to bring generic versions of new medicines to the market. Without generic competition, we're seeing the cost of second- and third- line ARVs up to 20 times more expensive than first-line ARVs. It is vital now more than eve r that countries use all of the flexibilities available to them to protect public health."
South Africa currently provides patent protection beyond what is required by the TRIPS agreement. "There are a number of amendments that South Africa must make to its Patents Act to promote public health," said Catherine Tomlinson, a senior researcher with the TAC. "Unlike South Africa, India, Brazil and Thailand, among others, have used flexibilities allowed for under TRIPS to curb excessive patenting of pharmaceuticals and promote public health. While South Africa granted 2,442 pharmaceutical patents in 2008 alone, Brazil only granted 278 pharmaceutical patents between 2003 and 2008."