Cancer patients’ constitutional right to access healthcare services is under threat, and cheaper generics are prevented from entering the market due to patent barriers, says non-profit organisations advocating for cancer patients’ rights and treatment.

Patent barriers are the main reason why people that access the public health sector cannot access treatments that are already available in the private sector. The Fix the Patent Law Campaign has been advocating for patent law since 2012 with no success. A health manager at the Cancer Association of South Africa(CANSA ), Lorraine Govender says life-saving drugs are priced out of reach.

“Patent barriers prevent cheaper generics from entering the market. This affects all types of drugs, treatments for drug-resistant tuberculosis, cancer, hepatitis, newer antiretroviral medications for HIV, oral contraceptives,” Govender told Health-e News.

According to Govender, oncology drugs are undoubtedly one of the biggest cost drivers in healthcare today. The high drug costs are multifactorial. It is partly related to costs in respect of drug development and clinical research required to get regulatory approval.

She says it is concerning that South Africa does not examine patent applications to properly assess if a particular drug meets the criteria to be granted patent rights. And as a result, South Africa grants numerous patents that fail to meet the country’s patent standards.

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

Essential drugs overpriced

“When more than one company makes a medicine then the price drops because companies must compete to sell their product to the public. However, when a product is under patent, there is no competition, and the price stays high. In fact, the company that holds the patent can charge whatever price they want for the 20-year patent period. This is one of the main reasons why many medicines are so expensive,” explains Govender.

Doctors Without Borders(MSF) says high prices have long restricted access to affordable and lifesaving treatment needed by millions of people in developing countries.

Cancer Alliance Salome Meyer says patent barriers are the main reason why people who access the public health sector cannot access treatments that are already available in the private sector.

“Most of the medicines that are still under patent are high-cost medicines that are unaffordable for the majority of people in the private sector as they will have to pay a 50% co-payment penalty. The further reality is that most of these medicines are not yet listed as the standard of care in the guidelines for cancer. As each of the medical schemes has their own guidelines and their specific cancer benefits which determine whether they fund treatments or not,” explains Meyer.

SA failing to use TRIPS agreement to full advantage

Meyer says that the patent law in South Africa is archaic. The Fix the Patent Law Campaign has been advocating for patent law since 2012 with no success. “There are indications that there is pushback from some of the members in parliament,” says Meyer.

But Govender believes that South Africa is failing to take full advantage of legal flexibilities permitted under the World Trade Organisation’s TRIPS Agreement to practically and feasibly overcome patent barriers and access more affordable generic medicines.

“South African patent laws lag behind that of other emerging economies, such as India, Brazil, and Argentina, in terms of how it protects public health. South Africa grants more patents on pharmaceuticals than these countries but also is more willing to grant patent monopolies on medicines than even the U.S or European Patent Offices. But South African laws have fallen short in promoting economic growth, investment, and the right to health,” says Govender.

The World Health Organisation states that cancer is the second leading cause of death globally, accounting for an estimated 9.6 million deaths, or one in six deaths in 2018. Lung, prostate, colorectal, stomach and liver cancer are the most common types of cancer in men, while breast, colorectal, lung, cervical and thyroid cancer are the most common among women. – Health-e News


  • Ndivhuwo Mukwevho

    Ndivhuwo Mukwevho is citizen journalist who is based in the Vhembe District of Limpopo province. He joined OurHealth in 2015 and his interests lie in investigative journalism and reporting the untold stories of disadvantaged rural communities. Ndivhuwo holds a Bachelor of Arts degree in Media Studies from the University of Venda and he is currently a registered student with UNISA.