SOUTH AFRICAN COMPETITON AUTHORITY CALLS FOR PATENT LICENSING FOR HIV DRUGS

The BBC reports that the South African Competition Commission has advised that GSK be fined 10% of its annual AIDs drug revenue in the country as a penalty for failing to make the drugs available to the poor. Additionally, it has recommended that GSK and Boehringer be made to grant compulsory licences in return for royalty payments to generic drug-makers, the aim being to promote competition between the patent holders and generics companies. The ruling was made on 3 grounds:

1. Denial of access to an essential facility
2. Excessive pricing
3. Exclusionary activities

The case will now be passed on to the Competition Tribunal which has the power to enforce it.

The IPKat notes with interest that this has been treated as a competition law problem rather than a patent law problem, though he observes that the case was referred to the Commission in 2002, before the measures to guarantee access to drugs introduced this year in Cancun. Traditionally there has been somewhat of an antagonism between the two areas of law. However, the ultimate aim of competition law is to benefit consumers by providing a competitive market while patent law also protects the public interest by providing for compulsory licences of patents. Nevertheless, whichever field of law the issue of access to drugs for the less well-off is tackled under, the outcome means the difference between life or death for millions of people.

Competition Commission press release here
Information on the AIDs problem in South Africa here and here
Information on AIDs drugs and IP here