SCP25: Statement of the Republic of South Africa on Patents and Health

On Tuesday, 13 December 2016, the Republic of South Africa delivered the following statement during the WIPO Standing Committee on the Law of Patents (SCP) discussions on patents and health.

WIPO Standing Committee on the Law of Patents (SCP) 13 December 2016

Madam Chair

South Africa aligns itself with the statement delivered by Nigeria on behalf of the Africa Group.

Please allow me Madam Chair to preface my statement by following other delegations and reminding this august gathering that through the adoption of the United Nations 2030 Agenda for Sustainable Development, all countries committed themselves to achieving universal health care where everybody is supposed to receive their required health services not hindered by their financial status. In this regard, SDG Goal 3 states:

“Ensure healthy lives and promote well-being for all at all ages” and SDG target 3.8 requires that the international community should strive to “Achieve universal health coverage, including financial risk protection, access to quality essential health care services and access to safe, effective, quality and affordable essential medicines and vaccines for all” .

Madam Chair,

A paper on Universal Health Coverage published in May 2016 by the Elders, a group of independent international leaders convened by former South African president Nelson Mandela in 2007 to use their collective experience and influence for peace, justice and human rights worldwide, paints a very dire picture. It notes that although universal health coverage is a commitment of every UN Member State, the realities on the ground do not reflect this commitment.

“However, across the world, hundreds of millions of people are currently denied lifesaving health services or are plunged into poverty because they are forced to pay unfordable fees for their care. This burden is particularly felt by women, children and adolescents, who often have high needs for health but least access to financial resources. In some instances, women and babies are even being imprisoned in health units because they cannot pay their medical bills. This represents a cross violation of their basic human rights”.

Madam Chair,

While the report identifies political commitment at the national level as one essential element for the implementation of universal health coverage as mandated by SDG 8, as a remedy to the problems articulated by the Elders above, the UN Secretary General’s High Level Panel on Innovation and Access to Health Technologies, which was convened by the outgoing UNSG and mandated “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies” points to serious impediments to achieving the noble goal of health for all, impediments which are brought about, in one way or another, by factors related to intellectual property, patents, in particular.

For example, the report notes that many governments have not used flexibilities available under the TRIPs Agreement for various reasons ranging from capacity constraints to undue political and economic pressure form states and corporations, both express and implied. The Panel concludes that political and economic pressure placed on governments to forgo the use of TRIPs flexibilities violates the integrity and legitimacy of the system of legal rights and duties created by the TRIPS Agreement and reaffirmed by the Doha Declaration. (We will elaborate further on how our own country was a victim of this pressure in our exchange of experience presentation).

The Panel recommends that:

Countries should make full use of the flexibilities enshrined in the TRIPS Agreement, and use the policy space available in Article 27 of TRIPS “by adopting and applying rigorous definitions of invention and patentability that are in the best interests of the public health of the country,” including amending laws to curtail the ever-greening of patents and awarding patents only when genuine invention has occurred.

The United Nations Conference on Trade and Development (UNCTAD), the United Nations Development Programme, (UNDP), the World Health Organisation (WHO), the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO) should cooperate with one another and with other relevant bodies with the requisite expertise to support governments to apply public health sensitive patentability criteria.

These multilateral organisations should strengthen the capacity of patent examiners at both national and regional levels to apply rigorous public health-sensitive standards of patentability taking into account public health needs.

Finally, Madam Chair,

The Report is a rich repository and reference document and we believe that the implementation of its recommendations and other intellectual property and health related recommendations, as articulated in the Africa Group’s proposal, document SCP/24/4 has the potential to minimize this unfortunate situation where women and babies are being imprisoned in health units, anywhere in the world, because they cannot pay their medical bills.

We welcome further dialogue and contributions from other Member States on how we can make this dream become a reality.
I thank you