No abstract

Pharmaceutical firms' use of strategic patenting to influence the markets within which their patented inventions sit is legally questionable. Such patenting entails filing patents with the intention of blocking potential competitors from innovating and/or being granted patents within niche technology areas of interest to the patentee. Under this practice, patentees are potentially able to extend the breadth and duration of their monopoly power in the pharmaceutical market sub-sector within which that invention sits. Such practices take on a clear public interest element if they undermine affordable public access to medicines. This thematic report outlines forms of strategic patenting, analyses the degree to which the South African legal system provides remedies against such patenting, and proposes ways forward for South Africa to prevent such practices.

This paper explores the role played by international legal treaties, conventions and agreements that are binding on South Africa, in promoting the public's access to medicines. In greater detail the impact that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994, the Convention on Biological Diversity of 1992, and the United States of America's Bahy-Dole Act of 1980 have had in the development of South Africa intellectual property (IP) law is examined. In addition, a question regarding whether such international legal instruments have positively impacted the public's access to medicines is considered. The paper concludes that compliance with international IP law rules is not a silver bullet that will solve South Africa's challenges relating to access to medicines. The protection of the public's right to access to medicines in South Africa is strongly dependent on the government's political will of ensuring that IP law is implemented to serve public good and public and private pharmaceutical patent holders are held accountable regarding the socially-responsible utilization of their IP.