New South Africa IP Policy Unlikely Before May Elections

CAPE TOWN – South Africa’s upcoming general elections on 7 May have thrown a spanner in the works of the much-anticipated national draft intellectual property policy from coming into effect anytime soon.

The general elections will elect a new National Assembly as well as new provincial legislatures in each province.

Health activists staged a protest action recently when they marched to Parliament to express their dismay over the long delay in making the draft policy a reality.

But despite the latest call from health activists to finalise and implement the IP policy, Minister of Trade and industry Rob Davies last week reiterated an earlier confirmation to Intellectual Property Watch that it was not going to happen before the upcoming country general elections.

He also confirmed that the last cabinet meeting for the year, held three weeks ago, did not have the item on the agenda.

Davies said that the inter-departmental team is continuing with its work to collate the responses to the draft policy received during the public participation process.

The current draft IP policy was published by the Department of Trade and Industry in the government gazette in September 2013. The draft IP policy is available here [pdf].

Pressure to Reduce Fragmentation

The Treatment Action Campaign (TAC), Doctors without Borders (Médecins Sans Frontières) and SECTION27 led over 1,500 health activists from 13 organisations to Parliament. They demanded that members of Parliament should “push the DTI (Department of Trade and Industry) to stick to their public promise to complete the National IP Policy by April.”

Activists complain that it has already taken the Department of Trade and Industry six years to work on the policy.

South Africa does not currently have a general IP policy, and critics have argued that this has resulted in a fragmented and unconsolidated approach to IP matters, a point which government has conceded.

The draft IP policy aims to remedy this fragmentation by coordinating the country’s approach to IP matters on both a national and international basis.

Other objectives driving the draft IP policy include improving IP enforcement, promoting research and development, ensuring IP laws are relevant to development and innovation, and promoting public awareness and education of IP in the country.

Specifically, the draft IP policy contains a substantive patent review system, which is a key feature of the policy.

The draft policy also states that IP protection regimes must not contradict public health policies and that the two should be balanced.

And the draft policy notes that provision should be made in the laws to facilitate the quick entry of generic competitors as soon as the patent has expired on a particular medicine.

Health activists have long campaigned for a patent review system given that no such system had existed before and have welcomed the draft policy as a positive development.

However, some pundits have expressed their misgivings of the draft IP Policy.

Owen Dean, who holds the Anton Mostert chair of intellectual property law at Stellenbosch University, was reported saying that South Africa lacks the specialist skills to assess applications for medicine patents.

Meanwhile, the TAC’s senior researcher, Lotti Rutter, said that a consequence of the elections could see a new Minister of Trade and Industry being appointed, but that the TAC is confident that the draft policy will not be shelved if that happens.

Rutter added that the TAC’s health manifesto, which included a consolidated IP Policy, was well-received by the major political parties and this could be used to “hold them accountable” post elections.

The draft plan became political when leaked documents showed it was the subject of a targeted campaign by foreign pharmaceutical companies.