The state of SA patent law in the wake of PharmaGate

Fix the Patent Laws: TAC and MSF have formed the Fix the Patent Laws campaign to address patent law reform in SA. Big Pharma has other plans. Image Credit: Fix the Patent Laws. I do not own this image.

Fix the Patent Laws: TAC and MSF have formed the Fix the Patent Laws campaign to address patent law reform in SA. Big Pharma has other plans. Image Credit: Fix the Patent Laws. I do not own this image.

The SA government last year published a proposal for long-overdue patent law reform. A shady cabal of Big Pharma types promptly responded with a devious scheme to limit the changes through some kind of underhanded social engineering campaign. You’d be excused for thinking that this all sounds a bit like fiction.

Fix the Patent Laws

The story starts several year ago, with the launch of the Fix the Patent Laws campaign, a joint venture between Treatment Action Campaign (TAC) and Medicins Sans Frontieres (also known as MSF or Doctors without Borders). These groups want the SA government to reform its patent laws to increase our access to generic medicines and lower the cost of pharmaceuticals – as it stands, we have no written policy with regards to intellectual property, and patents are awarded far too easily. 

This has resulted in a situation where pharmaceutical companies can extend their SA patents indefinitely by tweaking them slightly: so-called “secondary patenting” (see this paper or this report for a fuller explanation of this strategy). This means that the companies can effectively block competitors from producing generic medicines through a technicality – a practice that is not only anti-competitive, but limits the market for generic (read ‘cheap’) medicines in SA. And as I am sure you are aware, we have a public health crisis in this country. We need all the cheap medicine we can get our hands on. And so, in September, our government released a policy proposal document to rectify the situation.

A nefarious plot

Of course, Big Pharma was not going to just lie down and take this heinous attack on their profit margins, and so A Plan was concocted. Grand in vision, nefarious in intention, and certainly unethical, if not downright illegal. We know about this plan thanks to an email leaked to Knowledge Economy International in January. The short version is that Innovative Pharmaceutical Association of SA (IPASA), in concert with PhRMA (Pharmaceutical Research and Manufacturers of America), the granddaddy of meddling, pseudopolitical corporate lobbying groups, hired a company called PAE to mastermind a social movement to reject these patent laws.

PAE stands for Public Affairs Engagement (Don’t worry, that’s all the acronyms you have to remember), and according to their website, “Our creative solutions will advance the business goals of our clients, deliver results in the most challenging environments,  and shape public policy and opinions.” So some kind of black hat, cloak-and-dagger public opinion lobbying group. Or something. Anyway, the leaked email (from Michael Azrak, Merck South Africa Managing Director  and Head of IPASA’s Intellectual Property Committee, to a group of about 24 major pharmaceutical companies) revealed that IPASA and PhRMA had actively sought out PAE to subvert the patent law reform process, or at least delay it until the 2014 national elections had passed. In the aftermath of this, IPASA tried (in vain) to distance themselves from PAE and SA Health Minister Dr. Aaron Motsoaledi called the plot ‘Satanic’. Pharmaceutical giants Roche and Novo-Nordisk have left IPASA, and the executive committee of IPASA has been disbanded, although they still maintain that they have done nothing wrong.

The problem with our IP policy

The problem stems from a lack of decent IP policy for the last twenty years. SA wholeheartedly adopted a Commonwealth policy in the 90’s which gave multinational corporations a lot of power as holders of IP. The  policy was more appropriate for developed countries than developing ones, and this has seen a loss of investment from multinational pharmaceuticals, as they moved their manufacturing to more favourable economies. At the same time, SA issues patents far too easily: to illustrate the point, the US and EU reject approximately 40% of the patents that are approved in SA. This is because there is no patent examination process in our country. The overall outcome is that pharmaceuticals can easily (and cheaply) maintain a stranglehold on specific medicines in SA, preventing the development and distribution of cheap generic medicines such as ARV’s and TB medication.

The solution is here

Personally, I support what our government is trying to achieve with this policy proposal. A patent examination process will improve the overall quality of IP and patents issued, which is vital if we are to become a knowledge economy. The proposed compulsory licensing and limitations on secondary patenting will benefit this country two-fold. First, this will of course make medicines cheaper, as it will enforce licensing of patents to producers of generic medicines. Secondly, this will have a positive economic effect, as generic medicine production in SA will become easier to achieve, and the industry will turn a much better profit. Similar policy in India has had a profound effect on their pharmaceutical industry, resulting in India becoming a global hub for low-cost generic medicines. 

As for Big Pharma, well, I guess this is just more of the same. I find it really sad that corporate lobbying has gained so much power that they now feel like they can meddle on the global stage, without fear of repercussions. And I think that it’s great that someone in one of those corporations had the decency to leak the email and spoil their little plan. SA needs this policy reform, badly. And the world needs less political meddling from multinationals.

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