South Africa has said it will amend its patent legislation to allow it to use the parallel importation and compulsory licensing rights provided by international agreements.

Commenting this week on responses to a public consultation on the government’s proposed National Policy on Intellectual Property (IP), Trade and Industry Minister Rob Davies said that while South Africa has been a major champion of processes such as parallel importing and compulsory licensing internationally, it “has not necessarily” incorporated them into domestic law.

But, as “the world capital” of HIV/AIDS and with its associated tuberculosis burden, South Africa has to “have the freedom and ability to use the policy space that’s been made available to us under” the World Trade Organisation (WTO)’s Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement, Business Day newspaper reports the Minister as saying. 

“South Africa is seeking to use the patent-related flexibilities as set out in the TRIPs agreement of WTO,” says the government response to the consultation.

Mr Davies added that he has told drug patentholders: “we are not doing anything that you won’t be familiar with in other jurisdictions.” 

The country’s current Patent Act does not cover parallel imports, and while the Medicines and Related Substances Act does include enabling provisions for parallel importation, these have never been used. Health activists say that this is because the current procedure is too cumbersome and, in a joint response to the consultation, the Treatment Action Campaign (TAC), Medecins Sans Frontieres (MSF) and Section 27 call for it to be replaced by “a simple, expeditious procedure that is subject to review proceedings in the High Court or the Court of the Commissioner.”

The Patent Act currently does not address issues of medicines pricing but the proposed policy will seek to do so, and grants and incentives may be introduced to encourage local innovation through the policy options available to WTO member states, says the government. 

It also notes that the country does not currently provide patent extension or restoration, but is under pressure to do so. However, as currently there are no standardised global timelines for such terms, its initial recommendation is that, without such harmonisation, it would be difficult for South Africa to introduce patent extension/restoration, it says. 

The government also pledges to continue to apply competition law to the patent regime “where there is over-concentration, dominance or abuse.”