More often than not, patented medicines are more expensive than generic versions of drugs, with most cancer medicines being extremely expensive. It is not unusual for cancer patients on medical aid to exhaust their oncology benefits, facing crippling bills at the end of their treatment regimen. It is known that once a generic enters the market it encourages competition driving prices down even further.
The Treatment Action Campaign is arguing that it is in the interests of cancer patients that the generic drugs be available, and that the harm to patients will be greater than the harm to Sanofi-Aventis. If the Court accepts TAC's argument it will be an important advance for the rights of access to affordable medicines. It will mean that in future in any dispute over patents in respect of medicines, the courts will have to consider the public interest and the Constitutional right of access to health care services.
Unlike many other countries where patents can only be registered following substantive examinations, in South Africa it is relatively easy to register patents. South Africa currently provides patent protection beyond what is required by the TRIPS agreement. Unlike South Africa, India, Brazil and Thailand, among others, have used flexibilities allowed under TRIPS to curb excessive patenting of pharmaceuticals and promote public health. South Africa granted 2,442 pharmaceutical patents in 2008 alone, Brazil only granted 278 pharmaceutical patents between 2003 and 2008. Generic versions of the disputed drug are now available in the United States - a country that upholds strict patent protection.
The consequences of South Africa's strict patent protection are high medicine costs and the delayed availability of affordable generic medicines. Medicine expenditure increased 25.2% between 2008 and 2010, while actual medicine use only increased 5.8%.
Access to life-saving medicine is a human right, not to be dictated by a bank balance or company profits.