The Comments Are In On South African IP Framework; Action Seen In Early 2017

The invitation by the South African Department of Trade and Industry (DTI) to intellectual property stakeholders to comment on its recently released IP Consultative Framework has reignited calls for the department to come clean on the status of the national draft IP policy.

The draft IP policy was published by DTI in the government gazette in September 2013.

It is the uncertainty over the status of the draft IP policy that has frustrated activists and other IP stakeholders who have followed and contributed to the process of the draft IP policy.

Many IP stakeholders have used the current submission process into the IP Consultative Framework as an opportunity to publicly amplify their repeated calls for the long-awaited draft IP policy to be finalised as soon as possible.

The public submissions process for the IP Consultative Framework [pdf] has attracted a flurry of interest, resulting in the deadline for submissions being extended several times.

The public submissions process deadline was first mooted for 31 August and was then extended to the end of September. When stakeholders complained that the timeframe was still too short, DTI extended the public submissions deadline for a third time; this time closing on 14 October.

DTI spokesperson Sidwell Medupe said that the request to extend the public submission process a third time, until 14 October, came from IP stakeholders themselves.

The public submissions process into the IP Consultative Framework has created a platform for IP stakeholders to once again call for IP law reform in the country. DTI has not released a list of submitters nor the submissions themselves.

In response to a query from Intellectual Property Watch into the current status of the draft IP policy, DTI spokesperson Sidwell Medupe said the inputs into the IP consultative framework “will be consolidated and will inform the development of a draft policy which will be subjected to a further consultative process. The plan is to submit the IP policy to Cabinet in the first quarter of 2017.”

Sample Comments

At the end of September, health activists from the Fix the Patent Laws campaign, comprised of 32 organisations, marched to the DTI in Pretoria to demand “that they change laws so that everyone can get the medicines they need at affordable prices.”

A press statement released by the campaign ahead of the march read in part: “In 2013 the South African government committed to reforming South Africa’s patent laws in a draft National Policy on Intellectual Property. Yet three years later, nothing has changed and many people still suffer unnecessarily.

“In July this year Cabinet approved a new Intellectual Property (IP) Consultative Framework for South Africa. The Consultative Framework now presents a process for finalisation of the draft Policy.”

The submission by University of Stellenbosch IP law Professor Sadulla Karjiker raised this question amongst others:

“…It is no secret that the quality of the outputs from the dti over the past few years have been a cause for concern to those interested in ensuring that our legislation properly balances the various interests at stake, and produces the necessary certainty.

It is, therefore, fair to ask what the status, or future relevance, of the Draft National

Policy on Intellectual Property, 2013 (the “Draft Policy”) will be going forward? Why does the Consultative Framework make no reference to the earlier Draft Policy? …”

For the full submission by Karjiker, together with his predecessor Owen Dean, see here [pdf].

Following the release of the IP consultative framework for comment, The Treatment Action Campaign’s (TAC) Lotti Rutter wrote on the organisation’s website:

“…We welcome progress by the Department of Trade and Industry (DTI) in moving towards reforming South Africa’s laws in line with commitments made in the 2013 Draft IP Policy, and are encouraged to see public health safeguards as a priority, as well as by the cooperation between different ministries evident in the Framework. However, we are deeply concerned by the three years of delay between documents, as well as potential for ongoing delays in reforming the country’s laws…

“The slow pace of reform means that South Africa’s patent laws remain out-dated and in the foreseeable future South Africa will remain unable to utilise a number of public health safeguards available under international law. Ultimately it is patients who will pay the price.”

“We urge the Department of Trade and Industry and all ministries involved in the inter-ministerial committee on IP reform to be cognisant of the urgency of these issues, to provide concrete timelines and actions for the process going forward, and to continue to prioritise the public’s health in doing so. We remain committed to engaging with this process…”

The Fix the Patent Laws campaign was a co-submitter along with academics, experts, scholars and process advocates. This collective submission was driven by the University of Cape Town’s IP Unit (faculty of law).

Amongst the submission’s recommendations were:

• … the dti should initiate regulatory and sub-regulatory reforms, including pharmaceutical patent examination guidelines, that would clarify and tighten patentability criteria for pharmaceuticals, and allow for immediate patent examination in this area of vital national interest.
• The implementation of a substantive search and examination system should be prioritised, and the relevant legislation promulgated to facilitate substantive examination beyond mere formalities. Clarifying this issue would, for example, allow the dti to take forward examination of pharmaceutical and other health technology-related patents as a matter of urgency, especially as it has already hired and is training a cadre of patent examiners…
• …The introduction of examination guidelines linked to strict patentability standards with proscription on minor modifications to or variations of known substances, new use and new formulation patents to prevent ever-greening;
• Full disclosure in patent applications including their foreign status and, when available, the International Non-proprietary Name (INN) of pharmaceutical-related patents;
• Pre- and post-grant opposition procedures, accessible to all interested parties (widely defined); …

The full submission can be read here.

The IP consultative framework has not produced consensus about its content amongst IP stakeholders. Divergent views on the framework and its intentions have been expressed in detailed submissions that have been submitted to the DTI during the public submissions period.

Apart from varying perspectives, the initial public submissions period was also criticised as being too short a timeframe for thorough responses to be drawn up by IP stakeholders.

Adams & Adams (A&A), a law firm specialising in IP law and practice that has been in operation for more than 100 years, said in its submission, “For a consultative process to be fair, inclusive and creditable, it is important that sufficient time be afforded for proper consultation to take place. The IP Framework was only officially published in the GG for public comment in the second week of September 2016; with the cut-off date stipulated as 30 September 2016, this only allowed about 3 weeks for public comments to be compiled and submitted. There is some concern that the opportunity for consultation on the IP Framework was insufficient in that not all industry sectors were directly approached or were aware of the need for commentary…

The submission by the firm was a tandem effort since “the IP professionals of A&A are also members of the SA Institute for IP Law (SAIIPL), and indeed participated in the drafting of the submission on the IP Framework made by SAIIPL. A&A supports and endorses the position put forward in the submission on the IP Framework made to the dti by SAIIPL.”

The intersection between IP and public health was a thread running through submissions and solicited varying opinions amongst IP stakeholders.

Adams&Adam’s submission reads in part:

“…A&A wishes to point out that, from a legal perspective it would be important, when addressing this issue, for a proper investigation to be made as to the true effect of patents on the availability of and the access to essential medicines, and thus on public health. It is widely accepted and frequently argued by groups criticising and indeed attacking the current South African patent system, that patents provide a barrier to the access to medicines, particularly affordable medicines. However, it is seldom recognised that patents also provide the incentive for research and development work in order to find the medicines needed for public health.”

It continued: “…The provision of effective health care is a matter of national priority to be addressed by governments – IP plays no part in that factor. Likewise, the provision of effective medical treatment relates to the availability of appropriately trained medical practitioners; again a national educational matter – IP plays no part in this factor. However, part of effective health care and effective medical treatment is the access to appropriate medicines; of relevance in this regard is the availability of such medicines, and thus the issue of local manufacture or importation – IP is relevant where local manufacture and/or importation will require licensing by IP right holders. Furthermore, another underlying aspect of effective health care and medical treatment is the availability of new and effective medicines to treat the increasingly resistant diseases – this is where IP becomes even more relevant, inasmuch as IP rights are viewed as one (and perhaps the most important) incentive for R&D to find new and effective medicines.”

The full submission can be read here.