E-drug: SA-USA Patent drug dispute resolved
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[copied from Business Report, Pretoria News]
by Adele Shevel, 18 September 1999
Johannesburg - The Department of Trade and Industry said
yesterday the longstanding dispute between the United States
and South Africa over the matter of intellectual property in the
pharmaceutical industry had been resolved.
"We are pleased to announce that a resolution to this matter has
now been found. This is premised on the commitment of both
governments to the agreement on Trade Related Intellectual Property
Rights (Trips) under the auspices of the World Trade Organisation...",
the department said in a statement.
The government "will honour its obligations under the Trips
agreement" in the implementation of the provision of the Medicines
Act, which permits parallel importation and compulsory licensing of
patents for pharmaceuticals.
Industry sources said an actual resolution had been frustrated by an
inability between the two countries` trade negotiators to reach a
settlement. Pressure is looming on the eve of Thabo Mbeki`s first
visit to the US next week. Another factor is the upcoming meeting of
the World Trade Organisation in the US where patent protection will
feature high on the agenda.
One source said the individual governments were expected to bypass
the real issues while seeming to present a united front.
A joint statement was to have been released this week after lengthy
negotiations. Last night the department released a unilateral
statement. "We strongly welcome the fact that this matter has now
been clarified to the satisfaction of both governments...".
South African pharmaceutical companies under the Pharmaceutical
Manufacturers` Association (PMA), representing 41 companies, had
fought the law.
US trade decision-makers have been opposed to the law because it
conflicts with Trips. South Africa established the law to improve
access to cheaper drugs.
Last Thursday the PMA said it would temporarily suspend the
litigation against the South African government. The PMA has
challenged the issue of patent protection of pharmaceuticals against
the government before the Pretoria High Court.
The argument revolves around a law put forward by former health
minister Nkosazana Dlamini-Zuma to allow for compulsory licensing to
make copies of drugs and parallel imports of patented goods.
The legislation creates the opportunity to bypass the protection of
patents and intellectual property rights, a cornerstone of trade and
business worldwide.
Following the PMA announcement last Thursday, the health ministry
said the following day: "There are no negotiations with the PMA with
respect to any litigation that the PMA has brought against the
government of South AfricaE "The policy position of the government
of South Africa is that, as allowed by the Act 90 and international
trade agreement, it may issue compulsory licences for, or parallel
import medicines, in the public interest."
[The SA government has won the battle for improving greater access
to medicines, and has now put on public record that it is legal to
use parallel import and compulsory licencing under TRIPS.
This is good news for developing countries, as they will now be
able to put parallel import and compulsory licencing provisions
in their Patent legislation without a fear that they will be bullied
by drug companies or governments representing their interests.
Now the political battle is settled, let us try and harvest the fruits,
and test the use of parallel import and compulsary licencing on some
badly needed essential drugs that are currently unaccessible due to
their high prices (e.g., fluconazole for cryptococcus menigitis in HIV+
patients, ofloxacin for MDR-TB, zidovudine and many other
anti-retrovirals for
mother to child prevention, ganciclovir for HIV retinitis, new
antibiotics
for STD treatments etc.)
WHO has already studied how this legally could be done: see WHO/EDM/98.9
titled "Globalisation and access to drugs". It is available from
WHO/EDM,
email: dapmail@who.ch
WB]
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