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The compliance of South Africa's patents compulsory licensing regime to the TRIPs Agreement

Malebakeng Agnes Forere

Keywords: compensation; competition; compulsory licensing; patents; South Africa

In South Africa, patents compulsory licences can be issued under the Patents Act or Competition Act although the latter is not explicit. Whereas there has not been a single compulsory licence issued through the Patents Act, there is however a growing interest to obtain compulsory licences of drugs using the competition law regime. Focusing specifically on the standard of compensation, the objectives of this paper are two-fold: first, it seeks to determine why there is a growing interest in resorting to the competition route as opposed to the Patents Act. Secondly, the paper aims to determine the extent to which the South African compulsory licensing regime complies with the TRIPs Agreement. It is found herein that the standard of compensation under patents law is higher than that found in the competition law cases. Further, it is found however that compulsory licences issued through the competition law do not take into account the procedural safeguards that are found in the Patents Act as well as the TRIPs Agreement; as such, they undoubtedly infringe the rights of the patentees. The article recommends that the South African Competition Act should be reviewed with a view to aligning its compulsory licensing scheme with that of the Patents Act and the TRIPs Agreement, thereby establishing a nexus between competition law and patents law. This paper comes at an opportune moment in which South Africa and China are urging other WTO members to share their national experiences on the use of competition law to ensure access to health, and it shall therefore shed some light on how South Africa does it and the obstacles therein.

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