E-DRUG: Compulsory licensing of AIDS drugs in SA
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[copied as fair use from Business Report; WB]
http://www.busrep.co.za/static/20000714/general_news_35744.html
Patents Act to be used to deliver Aids drugs
Adele Shevel, 14 July 2000
Durban - The health department would seek access to cheaper overseas drugs
through the Patents Act rather than controversial health legislation that
has been hamstrung by legal challenges, Patricia Lambert, the legal adviser
to the health minister, said yesterday.
Lambert said this did not mean the government would abandon the Medicines
and Related Substances Amendment Act, which had been promulgated to give
the
health minister special powers to authorise the cheap importation of drugs.
She said pursuing the Patents Act route would be more expedient.
Pressure has been growing on governments to help Aids sufferers in
developing nations to access drugs they cannot afford. Pharmaceutical
companies have been slated for insisting on high profit margins while Aids
kills those who cannot afford drugs.
The government intends to use the Patents Act to implement compulsory
licensing and parallel importation. Compulsory licensing allows for the
manufacture of a patented object without the permission of the patent owner
in special cases. Parallel importation allows for the importation of a
product without the authorisation of the foreign patent holder, where the
drug is marketed in the patent holder`s country at a lower price.
The department of trade and industry is responsible for the Patents Act.
There are two separate mechanisms through which to invoke the act. The
first
allows a minister to use it in situations where it is deemed in the
national
interest to do so; the second allows for any citizen or organisation to
compel the trade and industry minister to use the act on the basis that
products under patents are not being used effectively.
Lambert said it was strange that no individual or nongovernmental
organisation had used the latter provision.
Mirryena Deeb, the chief executive of the Pharmaceutical Manufacturers
Association (PMA), which represents pharmaceutical multinationals in South
Africa, said it would have no objection to the use of the Patents Act
because it required due procedure to be followed and allowed for parallel
importation and compulsory licensing as an exception, not as a general
rule.
The healthcare legislation caused a wave of controversy and was largely
responsible for placing South Africa on a US trade and industry watchlist.
Lambert said it was more difficult to use the Patents Act ''because we have
to convince (the department of trade and industry or a court in the event
of
any legal dispute) about the `rightness` of the intent''.
The department had yet to decide on the details of the legal route, but was
discussing the issue with UNAids and had been in discussions with the World
Intellectual Property Organisation.
Lambert said that it was important to ensure the quality of drugs and that
prices were reasonable. The African market takes up only 1 percent of
global
pharmaceutical spending.
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