The Impact of Patent Protection and Lack of Generic Competition on the Right of Access to Medicines in South Africa: Explicating Corporate Responsibilities for Human Rights
AbstractIn the case of Cipla Medpro v Aventis Pharma (139/12) Aventis Pharma SA v Cipla Life Sciences (138/12)  ZASCA 108, the court stated, ‘Where the public is denied access to a generic during the lifetime of a patent that is the ordinary consequence of patent protection and it applies as much in all cases.’ This remark brings into the arena the issue of the impact of patent protection and the lack of generic competition on the fundamental right to have access to medicines provided for in the Constitution of South Africa and recognized in various regional and international human rights instruments and declarations. The right to have access to medicines can be assured if a sustainable supply of affordable medicines can be guaranteed. However, when sustainability of supply can be guaranteed, new medicines are often too expensive for poor people and governments in the developing countries. This paper seeks to investigate the challenge posed by intellectual property, specifically pharmaceutical patents, which human rights activists blame for creating monopolies that keep medicines inaccessible or unaffordable, and which pharmaceutical companies extol as necessary incentive for expensive research and development. The aim is to provide recommendations, on how this challenge that arises when intellectual property (pharmaceutical patents) and human rights converge can be overcome by pharmaceutical companies. The paper concludes that the enjoyment of the fruits of one’s intellectual property while at the same time preventing adverse human rights impacts is possible through a stakeholder and human rights oriented corporate governance approach.
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