The government should let pharmaceutical companies know that if negotiations on cheaper Aids drugs fail, it will not hesitate to issue compulsory licences, the Aids task team has been told.
The team was set up by the Ministry of Health last month to develop a detailed operational plan for a national anti-retroviral treatment programme.
In a memorandum submitted to the team, lawyers for the Aids Law Project and the Legal Resources Centre said the plan should commit the state to negotiations with pharmaceutical companies for the granting of voluntary licenses on reasonable terms.
These licenses should be both for local production and importation, and should be granted to at least four or five generic manufacturers.
This would ensure enough competition to keep prices down.
”In its negotiations, the state must make it known that if the negotiations fail, it will not hesitate to issue compulsory licenses in terms of Section 4 of the Patents Act,” the memorandum said.
Licensing allows other manufacturers to produce, or import, drugs that are still under patent.
In the case of compulsory licenses, which may be issued by the state, royalties to the patent holder are determined either by agreement, or, if there is a dispute, by the commissioner of patents.
The memorandum said the state had a constitutional obligation to ensure people had access to medicines.
If the cost of life-saving medicines placed them beyond the reach of the poor, because they could not afford the cost themselves and the cost to the government would be excessive, there was a duty on government to take reasonable measures to bring down the cost.
”If this involves some limitation of intellectual property rights, in a manner that is already permitted by national legislation, then that is what the government is constitutionally obliged to do.” — Sapa