Patent Law. The suit of the South African Government by 39 pharmaceutical corpora-tions, concerning imports of 'genuine' AIDS drugs.INDEX1. Introduction2. Description of the case3. Laws applicablea) TRIP'sb) Medicines and Related Substances Control Amendment Act (South Africa - 1997)c) International Covenant on Economic, Social, and Cultural Rightsd) WTO rules concerning dumping practices.4. Dispute resolution5. Comparative cases6. ConclusionINTRODUCTIONThis assignment aims to analyse the case concerning the patent law, and par-ticularly compulsory licensing and parallel importing for drugs. The case arose from the dispute about AIDS drugs between the South African Government and ...view middle of the document...
The new law contained measures that make medicines more affordable and improve the functioning of the Medicines Control Council. It was giving the government power to ignore patent protection on any pharmaceutical product where the health minister considers it appropriate.Three months later, and before the new law could be implemented, 39 multi-national drug companies supported by the South Africa Pharmaceutical Manufac-turers Association (PMA) tried to stop the Medicines Act by suing the government of South Africa.After a three-year battle in the South Africa's High Court in Pretoria, a group of pharmaceutical companies decided on 19 April to unconditionally withdraw their court case against the South African government.2. Positions of the partiesThe position of the pharmaceutical companiesThe drug companies, among which were Boehringer-Ingelheim, Glaxo Wellcome, Merck and Roche, claimed the Medicines and Related Substances Con-trol Amendment Act threatened patent rights and could affect profits and future re-search.They complained that the South African law was not specific enough about what constitutes an "emergency" to set the law's above provisions into motion and contradicted the TRIP's agreement. This was concerned with the most arguable section in the Medicine Act - section 15C , which according to the pharmaceutical companies was giving too much power to the Health Minister of South Africa.Section 15 C allowed the Minister of Health to regulate patented medicines in the public and private sectors, as well as any purchaser to buy the patented medicines where they are sold at prices lower than those offered by the manufac-turer or its licensee in South Africa, under "certain circumstances" and only to "protect public health" .Pharmaceutical companies were also unpleased with those aspects of the Medicines Act which they felt interfered with their rights to market drugs in South Africa. They feared the introduction of a higher degree of competition, which would drive the price of drugs down.They were also protesting against the provision of the Act, which was call-ing for the introduction of a pricing committee that would set up transparent pric-ing mechanisms and to which the companies would have to justify the prices they charge.The position of the South African GovernmentAccording to the South African government the Amendments to the Medi-cine Act introduced in 1997 did not have any contradictions to the WTO rules, which allowed for compulsory licensing and parallel importing .South Africa was also defending its position concerning the prevalence of public health on the patent rights. This position was supported by International Covenant on Economic, Social, and Cultural Rights and the assertion that the Medicines Act is a critical instrument in its struggle to attain affordable health care for all. The argument of the South Africa was that patent rights should not over-ride and should protect the human rights and human lives. So...
