International Intellectual Property laws with respect to pharmaceuticals patents in Africa, part 6


The traditional rational of intellectual property is that society benefits from inventors researching and developing new innovations which are shared with the public. [1] More specifically, the potential benefits of the South African intellectual property system is to increase foreign and domestic investment for research and development, technology transfer and a greater availably to pharmaceutical drugs to fight the AIDS epidemic. [2] However, for a developing country the needs for access to technology outweigh the need for strong intellectual property protection.  [3]

Because South Africa does not having strong patent protection policy South Africa may short term benefit in two ways[4]. First, South Africa will have the ability to acquire patent drugs without having to pay the additional royalty and licensing fees. [5] Second, the South African economy can increase by obtaining a windfall by exporting the cheaper priced good to other nations that lack strong patent protection. [6] However, without strong intellectual property rights in South Africa both of these goals will only be short term and the lowering of intellectual property rights will eventually hurt the nation and its trading partners. [7]

Furthermore, unlike other developing nations, South Africa is a nation that can benefit short term by currently having weak intellectual property protection. [8] This is because South Africa has an adequate framework work that can support domestic research, development and manufacturing of pharmaceuticals.  [9] Currently, there are 12 major pharmaceutical companies with manufacturing plants in South Africa. [10]Thus, if the South African government took advantage of the skilled domestic workforce in South Africa they might be able to start self-producing individuals. [11]

Secondly, another safeguard for strong patent protection in developing nations is the difficulty and price required to copy new drugs. [12] It appears that the reasons for a weak patent system are not directly applicable to South Africa because there is an adequate infrastructure to support the domestic production of antiviral medications and the cost of drugs is increased by factors other than then licensing fees. [13] Whether or not South Africans can afford new drugs is not determined by if manufactures refuse to introduce new drugs due to weak patent protection in South Africa.   [14] One such reason for the increase in pharmaceutical prices in South Africa has to deal with transportation costs to end users. Reportedly, not only are drugs being stolen and then resold, but also hospital equipment is being stolen and consequently raising the price of antivirals. [15]

However, because South Africa has the potential to domestically produce antivirals it would be a long term necessity to develop stronger patent rights to protect future domestic manufactures.  Thus, although strong patent rights in the short term are not required in South Africa when looking long term it will be important for South Africa to create strong patent rights to protect their domestic economy.

[1] A. Samuel Oddi, The International Patent System and Third World Development, Reality of Myth?, 1987 Duke L.J. 831 (1987)

[2] Id.

[3] Stefan Kirchanski, Protection of U.S. Patent rights in Developing Coutries: U.S. Efforts to Enhance Pharmaceuticals Patents, 16 Loy. L.A. Int’l & Comp. L.J. 569 (1994).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Shanker A. Singham, Competition Policy and the Stimulation of Innovation: TRIPS and the Interface Between Competition and Patent Protection in the Pharmaceutical Industry, 26 Brook. J. INT’L 392 (200)

[9] Id.

[10] Id.

[11] Id.

[12] Bernard Pecoul et al., Access to Essential Drugs in Developing Countries: A Lost Battle?, 281 Jama 361 365 (1999).

[13] Id.

[14] Id.

[15] Id.

By | 2012-10-30T18:35:15+00:00 October 30th, 2012|Foreign Patent Prosecution|Comments Off on International Intellectual Property laws with respect to pharmaceuticals patents in Africa, part 6