South Africa vs. Big Pharma: Duking It out over Patent Law

By Tatiana Andia*

 

Over 15 years ago, a popular South African activist organization called Treatment Action Campaign (TAC) led the first global campaign for access to antiretroviral medication to treat HIV-AIDS. During that period, the pharmaceutical industry sued Nelson Mandela’s government for violating international trade agreements after the South African government suspended certain antiretroviral patents to guarantee the public’s access to these medications.

Today South Africa once again finds itself in the middle of a global controversy because of its efforts to reform its patent law and make it more pro-access. As was expected, the international pharmaceutical industry has come out against the reform with full force.

The 1998 South African campaign with its “HIV Positive” T-shirts that even President Nelson Mandela wore, illustrates the tension between protecting intellectual property rights and access to medication in the Global South. International property law under the 1994 Trade-related Aspects of Intellectual Property Rights (TRIPS) rules, signed under the auspices of the World Trade Organization (WTO), awards innovative pharmaceuticals a 20-year monopoly through patents.

While these patents reward innovation, they also make the innovative products almost unaffordable for patients and governments in the Global South. In the 1990s the South African government and the TAC created greater flexibility in international intellectual property rules by allowing affordable generic antiretroviral medications to be sold, despite patent violations, to guarantee access to treatment for its citizens.

While this option was contemplated in the international agreements on patents, no one had dared to try and use it. The response by the pharmaceutical companies was vicious and produced an international battle from which South Africa eventually came out victorious.

South Africa was the first country to challenges international trade norms. More importantly, the TAC campaign won out against the international pharmaceutical industry by exposing how they put profit before the health and lives of the poor.
Their campaign showed that solidarity across transnational social movements was possible, as Hans Klug documents in his chapter titled “Campaigning for Life: Building a New Transnational Solidarity in the Face of HIV/AIDS and TRIPS.”

Other countries quickly followed South Africa’s lead. First was Brazil, who allowed the commercialization of generic antiretroviral and reformed its patents law, and then other countries like Thailand, the Philippines and Ecuador followed. Thanks to South Africa, implementing a flexible interpretation of the TRIPS rules that allows countries to set aside patents and guarantee access to medication is now perfectly legitimate.

Given this background, it is surprising that South Africa, the place where global activism around access to medication was born, has never reformed its national patent laws, and today continues issuing patents to whoever requests them without a thorough evaluation of the innovation’s merits and without allowing anyone to oppose them.

To resolve this internal contradiction, the government proposes to reform the patent law by:

  • Raising the patent standards (more demanding);
  • Limiting the patents to 20 years with no possible extension;
  • Allowing third parties (including producers of generic medicines) to oppose patent applications; and
  • Including in national laws the flexibility contemplated in international treaties.

Despite the fact that nothing South Africa proposes is novel the way the TAC campaign was in the 1990s, the patent law reform has been greeted with great disdain by the international pharmaceutical industry.

Recently, the international NGO Knowledge Ecology International (KEI) exposed exchanges between Merck’s Manager for East Africa and its Manager for South Africa, along with 24 other pharmaceutical labs, which are lobbying against the South African reform.

The South African government, together with pro-access activists from around the world, condemned the industry’s opposition campaign. South African Health Minister Aaron Motsoaledi declared that it was a form of “genocide.”TAC also issued a press release comparing the pharmaceutical industries current position to the one taken by the 39 pharmaceutical labs that sued Mandela’s government in 1998 for trying to increase access to antiretroviral medication.

Big Pharma’s fear can be explained by the symbolic power of South Africa’s decisions, which have proven to be examples Global South countries quickly follow. It is ironic that the pharmaceutical industries has decided to wage a fierce campaign against patent reform in South Africa, the country that had the first and the most successful access to medication campaign in the Global South.

May the better side win.

 

* Tatiana Andia, Researcher at Dejusticia (The Center for Justice, Law and Society)