Comments Received On South Africa’s Process For New IP Policy

CAPE TOWN – The much-anticipated process of public submissions into the draft South Africa National Intellectual Property Policy has come to a close. The country’s trade minister says the office is busy collating the 100 documents submitted by interested stakeholders and plans to submit a formal policy to cabinet for approval in the first quarter of next year.

The draft IP policy was released in September this year, followed by a public submission window period allowing for stakeholders to make inputs into the draft. The 30-day public submission period closed on 4 October.

South African Trade and Industry Minister Rob Davies told Intellectual Property Watch: “There’s a process now where we are engaging with the inputs…. We have to draft them into a formal policy to submit to cabinet and then into Parliament. We are at a fairly early stage of the process.”

The Department of Trade and Industry received submission from a range of law firms, other government departments and nongovernmental organisations.

Simphiwe Ncwana, the director of commercial law and policy in the South African Department of Trade and Industry (DTI), said that 100 documents were received in total from about 300 entities, some of whom came together to make joint submissions.

Davies confirmed that there were submissions from outside of South Africa, including the European Union. However, the EC document has not been made public.

In response to a request to access the document, Dirk Volckaerts, press officer for the European Commission said: “I can confirm that the European Commission did submit a contribution in response to South Africa’s request for contributions and comments. However, the contribution is not available publicly.  The European Commission submits such contributions bilaterally to the government.”

Davies earlier this month announced that his department will be hosting a conference this month still with all stakeholders, focusing on some of the main issues highlighted during the public submissions process.

Davies is expected today at the Creating and Leveraging Intellectual Property in Developing Countries (CLIPDC) conference, taking place in Durban, South Africa from 17-20 November.

One of the joint submissions was by academics attached to the University of Cape Town (UCT) and the University of Kwa-Zulu Natal (KZN) in South Africa. The submission is available here [pdf].

The website of UCT’s IP Unit, which published the joint submission, said in part: “Although the current policy document contains confused drafting as well as several erroneous factual and legal statements that require to be rectified, the overall intention of the draft policy is in our view good.”

Another joint submission [pdf] by health activist organisations the Treatment Action Campaign, Section 27 and MSF was made to the DTI and highlighted The Patents Act, which the groups suggest should be amended to include stricter patentability criteria. The three organisations have partnered in a long- running campaign to pressure government to change patents laws in South Africa in order to reduce the costs of medicines.

Stakeholders from the pharmaceutical industry also had their say during the public submission process into the national draft IP policy.

The National Association of Pharmaceutical Manufacturers (NAPM) is a not-for-profit organisation representing both the manufacturers and importers of generic medicines.

The NAPM said in its submission: “The NAPM fully endorses the stated aims of the draft IP policy amending South Africa’s existing patent law to take greater advantage of policy options (aka “flexibilities”) that are permitted by the World Trade Organization’s agreement on Trade Related Aspects of Intellectual Property Rights and that would promote access to affordable medicine in South Africa as well as adherence to South Africa’s national and international human rights obligations.

But not all submissions have been in agreement with the draft intellectual property policy as it stands.

The Innovative Pharmaceutical Association of South Africa (IPASA), which is made up of South Africa’s research-based pharmaceutical companies that previously belonged to either Innovative Medicines SA (IMSA) or the Pharmaceutical Industry Association of South Africa (PIASA), and integrated to form IPASA, complained in its submission that the public submission window period was too short.

“It is necessary to place on record the fact that the time allocated for interested persons to study the Policy document with its wide-ranging and diverse statements and recommendations, and to prepare and submit comments, was totally inadequate,” IPASA noted.

In addition, IPASA noted amongst its concerns: “The arbitrary use of Trade Related Aspects of Intellectual Property Rights (TRIPS) flexibilities as a means to weaken the patent system and to reduce or eliminate pharmaceutical patents will result in unforeseen negative consequences across all industrial sectors, and ultimately throughout the South African economy. It can be expected that this will result in a loss of confidence in and damage to the South African economy.”

On this point, IPASA continued: “There are also concerns about the Draft Policy’s failure to provide for patent term restoration; its proposal to connect the marketing regulatory and patent databases; and its proposals endorsing parallel importation of pharmaceuticals; the intention to regulate technology transfer relating to pharmaceuticals; and the use of compulsory licensing to facilitate market entry of generic drugs. These proposals could harm prospects for further development of, and investment in, research and development and enhanced manufacture in South Africa’s innovative biopharmaceutical industry.”

The IPASA submission is available here [pdf].