Important note: Information in this article was accurate in 2003. The state of the art may have changed since the publication date.
Sunday Times - Sunday, 14 December 2003
Adele Shevel
Nico Vermaak, a director at patent attorneys D M Kisch, says the landmark decision means that the value of patents could be eroded.
GlaxoSmithKline (GSK) and Boehringer Ingelheim will allow South African firms to produce generic versions of their antiretroviral drugs still under patent.
The first licence, from GSK, has been offered to Thembalami Pharmaceuticals, a joint venture between Adcock Ingram and Ranbaxy. GSK will consider applications for another two possible licences. The deal allows drugs to be exported by local manufacturers to all 47 sub-Saharan countries and copies of these drugs to be imported into South Africa.
"Anyone owning patents will be wary in South Africa," says Robert Appelbaum of Moss Morris Attorneys, which represents Boehringer Ingelheim, the owner of the Nevirapine patent.
GSK will allow four generic companies to produce and sell 3TC (lamivudine) and AZT (retrovir) for a 5% royalty.
Patents are protected for at least 20 years under international law. Patent protection is designed to allow firms to recoup their investments in research and development, and still turn a profit.
However, opponents of patent protection say patents create monopolies, restrict competition and deny mostly poor people access to life-saving drugs.
Aids treatment lobby Treatment Action Campaign (TAC) welcomed the moves by GSK and Boehringer Ingelheim.
The TAC's view is that the current system of patent protection does not promote research into diseases that affect third-world countries and that big business focuses on drugs that will be bought by rich, developed nations.
"There is a need for new, creative ways of spurring research and development," says lawyer Jonathan Berger.
The decision to relax the patent rights came after the Competition Commission found GSK and Boehringer Ingelheim guilty of abusing their dominant positions through excessive pricing, and of failing to license generic manufacturers.
Two years ago, GSK undertook to provide local generics manufacturer Aspen Pharmacare with a voluntary licence to copy some of its anti-Aids drugs.
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