International Intellectual Property laws with respect to pharmaceuticals patents in Africa, part 7

C. Human Impact of International Intellectual Property Law and Policy

Although the main goal of the Medicines Act was to lower the price of AIDS medicine, the pharmaceutical industries, in the United States and Europe, complained that the act was too broad. [1]The act contained the specific language that “drug patent rights shall not extend to acts in respect of such medicine which has been put onto the market by the owner of the medicine.” [2] The United States feared that this could be interpreted to allow the South African minister of health to grant compulsory licenses on drug products as soon as the were offered to sale. [3] This is due to the fact that TRIPS requires a reasonable attempt for a voluntary license and that the patent holder be fairly compensated for the license. Therefore, SAMRSA is in violation of TRIPS because it does not allow for patent holders to be adequately compensated for compulsory licenses. One such example of these violations is that SAMRSA allows for parallel imports of pharmaceuticals.  [4] However, TRIPS does not address parallel imports, but it does include provisions that patent rights are to be enjoyed without discrimination as to the field of technology. [5] Because SAMRSA only deals with pharmaceuticals, it is arguable that it discriminates and violates TRIPS. [6]

In response to the passage of SAMRSA, the United States contacted the World Trade Organization and requested an appeal to the Medicines Act. [7] In 1998, 39 United States pharmaceutical companies brought suit against South Africa to have the act repelled due to the fact that the act was vague and ambiguous. [8]However in 2001, there was intense negative publicity about the law suits brought by the 39 pharmaceutical companies. [9] The negative publicity was brought by former South African President Nelson Mandela who requested that the pharmaceutical companies drop the lawsuit. [10] Furthermore, thousands of protesters marched in South Arica demanding cheaper prices for AIDS medicine and the dismissal of the suit. [11] As a result of the protests and international publicity, all of the pharmaceutical companies dropped the lawsuit, acknowledged that SAMRSA was not in violation of TRIPS and the plaintiffs agreed to pay the legal expenses of the South African Government incurred in the lawsuit. [12]

Indirectly, the negative publicity has weakened patent rights in developing countries. This is due to the fact that SAMRSA was not required to be amended and the language of the Act continues to be vague and ambiguous. [13] Also, the negative publicity forced large pharmaceutical companies to realize the impact of publicity of fighting importation of AIDS drugs in South Africa. Ultimately, the pharmaceutical companies have become conscious that strong patent rights sometimes are not the only way to achieve large profit margins. Thus, pharmaceutical companies realize that positive publicity and goodwill through fighting the AIDS epidemic will help the profit potential in developed nations, where the potential profit is much greater than in developing nations. [14]

While there are many factors to be taken into consideration when creating international intellectual property law, the South African AIDS epidemic is a direct example on how human welfare should be an issue when reforming international intellectual property policy. [15] The human welfare of people in South Africa should be taken into account for both short and long term goals. Short term, it is important for the people of South Africa to receive affordable antivirals. Long term, it is important for the economy of South Africa to be able to domestically produce antivirals which would boost the economy of South Africa and help the welfare of the people living in South Africa. Thus, when completing international patent reform it is important to think both of short term and long terms goals.

 CONCLUSION

Multiple actions must be completed to solve the AIDS epidemic in Africa and allow affordable and accessible access to aids antivirals. In South Africa’s quest to solve the AIDS epidemic it is necessary for the country to continue to be in compliance with the minimum standards of TRIPS, which can be completed in many different ways. First, South Africa must continue to directly negotiate with the pharmaceutical companies to find a suitable licensing price. Second, the prime minister of South Africa can declare a state of national emergency, which would force compulsory licensing for antiviral drugs; however, there should definitive goals on when the Aids epidemic is ended.

Additionally, for long term goals it is necessary for South Africa to obtain stronger international property rights which will eventually allow the countries economy to grow once domestic antivirals can be produced. Such examples of how South Africa can maintain stronger patent rights are to ensure that pharmaceuticals are not being parallel imported and to enter into good faith negotiations for compulsory licensing.

Furthermore, when South Africa Lobbies for statutes, laws and international agreements it is important to keep into consideration both long and short term goals for the country. This is due to the fact that South Africa is a fast growing nation with an economy, technology and infrastructure that can hopefully in the near future self produce antivirals. Once South Africa can self produce antivirals as a nation it will be important to have stronger intellectual property protection to protect the domestic pharmaceutical companies and its economy.