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    New Draft South African IP Policy Receives Initial Positive Reactions

    Published on 9 September 2013 @ 3:11 pm

    By for Intellectual Property Watch

    The civil society collective formed to pressure the South African government to reform its patent act has cautiously welcomed the release of the country’s draft intellectual property policy.

    The Treatment Action Campaign (TAC), Médecins Sans Frontières (MSF, Doctors without Borders) and Section 27 welcomed the announcement that the Department of Trade and Industry (DTI) has called for public comment on the much anticipated National Policy on Intellectual Property.

    The draft policy document [pdf] was made public in the government gazette last week. Stakeholders can make use of a 30-day public consultation period until 4 October to make submissions to the policy.

    Industry reactions to the draft were not immediately available.

    For almost two years, the TAC, MSF and Section 27 have called for reforms to South Africa’s IP laws including, amongst others, the adoption and implementation of an examination system for all pharmaceutical patent applications, “as required by Section 34 of the Patents Acts as well as strengthening patentability criteria to prevent evergreening and promote high standards of medical innovation.”

    Evergreening refers to making small changes to an existing drug which is about to come off patent, in order to gain a new patent.

    In a press statement, the TAC, MSF and Section 27 said that while the policy consultation is only the start of the legislative process, “the principles outlined in the document set the stage for changes that promise to increase competition in the pharmaceutical sector and lower the price of medicines in South Africa.”

    “A key challenge noted by the policy is that at present, South Africa does not examine patent applications – instead, the current system allows pharmaceutical companies to obtain multiple patents on the same drug, even for inventions that do not fall under the country’s definition of innovation,” they said. “This allows companies to extend the life of their monopolies, block competition from generic manufacturers, and charge inflated prices for medicines in both the public and private sector.

    “To remedy this, the policy notes that South Africa should set a higher standard for innovation, so patents are not granted for simply combining existing medicines, or registering new uses for previously patented drugs. At the same time, the policy notes the need for a substantive patent examination system, which should better ensure criteria for granting a patent [are] upheld,” the statement reads.

    It is on this point that Pharma Dynamics, a generic pharmaceutical company based in Cape Town, lauded the draft IP policy as a “massive stride” towards improving the access to and affordability of healthcare in South Africa.

    Pharma Dynamics CEO Paul Anley said: “After years of urging authorities to address the stranglehold of originator drug companies on the market, it appears that the general public will finally start reaping the fruits of a market free of patent manipulation… The policy document recommends that the Medicines Control Council is capacitated and strengthened in order to avoid regulatory delays that hamper access to affordable healthcare. We believe that the proposals will bring new products to market faster and therefore increase competition and reduce the cost of medicine.”

    Generally, stakeholders of the IP policy held a circumspect view of the document.

    Intellectual property lawyer Andrew Rens said of the draft policy: “The policy that South Africa should abandon its anomalous deposit system, and instead require substantive examination, is welcome if overdue. “

    “The establishment of pre- and post-grant opposition will enable South African entrepreneurs to challenge attempts to patent them out of business without having to engage in expensive litigation. Pre- and post-grant opposition have worked rather well in India,” he said.

    “An important difference between South Africa and India is that prior to updating its patent act India did not permit patents on pharmaceutical formulae at all,” said Rens. “However, South Africa has not only permitted patenting of pharmaceuticals it has failed to examine the patent applications.”

    “Therefore, when South Africa introduces pre- and post-grant opposition it must be clear that all the patents already registered are subject to post-grant opposition. Since those patents have not been substantively examined there should be an expedited review process for patents that have already been registered,” Rens said in a written response.

    Rens also commented on the recent Marrakesh Treaty and the fact that there is no mention of it in the draft policy.

    In Marrakesh, Morocco, on 28 June – the final day of a World Intellectual Property Organization diplomatic conference – 51 countries signed a new international treaty to improve access to published materials for the visually impaired.

    “South Africa was very involved in the process that resulted in the Marrakesh Treaty so it is a little surprising that the policy makes no mention of the need for exceptions for the visually impaired, said Rens.

    “Perhaps the drafters see the need to amend the 1978 Copyright Act in accordance with the Marrakesh Treaty as so obvious it doesn’t need to be stated. In any case, amendment of the current legislation to enable the visually impaired and print disabled to enjoy the same right to read as the rest of us is urgent and priority should be reflected in the policy,” he said.

    Other stakeholders were still mulling a considered response when Intellectual Property Watch polled reaction to the draft IP policy, but many expressed optimism with the process of a new IP policy for the country.

    Tobias Schonwetter, director of the Intellectual Property Unit in the Department of Commercial Law at the University of Cape Town (UCT) said that he, together with colleagues are currently studying the policy and will submit our comments within the 30 day timeframe. “I am very excited to engage with this as it will shape future lawmaking in the area of IP,” he said.

    [Update:] The draft policy also states South Africa’s opposition to a proposal at the World Intellectual Property Organization to give additional rights to broadcasters, according to Knowledge Ecology International.

    Linda Daniels may be reached at info@ip-watch.ch.

     

    Comments

    1. New South African IP Policy Receives Initial Positive Reactions – Intellectual Property Watch | Legal Planet says:

      […] The rest is here: CLICK HERE TO READ THE ARTICLE […]

    2. DTI’s Draft IP Policy for South Africa out for public comment | IP Unit says:

      […] – a notable move away from a ‘one size fits all’ approach to IP. As mentioned in this article in Intellectual Property Watch we at the IP Unit are very excited to engage with this draft policy as the final policy will […]

    3. The Draft Intellectual Property Policy of South Africa | Spicy IP says:

      […] on Intellectual Property, 2013’ (“Draft Policy”) for public consultation. According to the news report, the pro-reform civil society collective cautiously welcomed the release of the Draft Policy. The […]

    4. Saving Lives with IP Law? - IPLJ says:

      […] testing of drug combinations to be negotiated with the rights holder first.  Activists also complained that the current system allowed companies to obtain multiple patents for the same medicine, thereby […]

    5. South African Draft Intellectual Property Policy: Initial Reactions - Shuttleworth Foundation says:

      […] Property Watch report some initial responses including some comments by yours truly. Here is my response to the IP watcher reporter in […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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