Why Intellectual Property reform in South Africa will help not hurt economic development and innovation in the country

Intellectual property is considered as one of the tools that countries may use to stimulate innovation
and creativity. In terms of inventions, the patents system provides for an exclusive right (patent) to be
granted, by the state, to an inventor for their invention. During the period patent protection, no one else
can make, use, import, market or sell the patented product other than the right-holder. The benefits of
a patent system and its ability to stimulate socially beneficial innovation, especially in relation to health
care, has been a contentious issue between industry, academics and health activists, and in many cases,
has been the instigator for patent regime reforms. It has also been the subject of extensive research.
In South Africa, the Fix the Patent Laws Coalition1 (FTPL) has conducted research on how amending
the South African Patents Act would contribute to making medicines more accessible to those who
need them. FTPL also lobbied the Department of Trade and Industry to develop an intellectual
property policy that addresses the shortcomings of the current legal framework in a way that fulfils the
constitutional promise to access health care services.
In 2018, after close to a decade of lobbying, Cabinet adopted a new intellectual property policy which
will be implemented in phases. Phase I proposes some critical health-related policy and legislative
changes. These proposals have been vigorously opposed by many, including the free market foundation,
on the basis that reforms to the current framework would hamper innovation and affect foreign direct
investment. This paper addresses some of the commonly held beliefs about patents which have been used to defend the status quo and oppose the implementation of the new policy.

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