Pharmaceutical patent law and policy in Africa: a survey of selected SADC member states

Abstract The paper surveys the intellectual property (IP) laws of seven Southern African Development Community countries to better understand the nature, scope, and depth of their patent laws with particular focus on their utilisation of TRIPS flexibilities to facilitate pharmaceutical access. The selected countries – Botswana, Malawi, Namibia, South Africa, Tanzania, Zambia, and Zimbabwe – represent a mix of both major and modest economies. While the current literature contains widespread assertions on the impact and effect of TRIPS on access to medicines in these countries and less-developed countries in general, this paper finds that the countries lack explicit and workable provisions implementing key TRIPS flexibilities. Hence, available TRIPS flexibilities have not been well utilised and it is often the complicated and unworkable domestic framework – rather than TRIPS – which becomes the stumbling block to pharmaceutical access. Another major finding is that patents may not be a major impediment in the region given that few patents and even fewer pharmaceutical patents are filed. The paper argues that since the surveyed countries are mainly net IP importers with similar developmental contexts and aspirations, the best approach would be to fully take advantage of existing flexibilities and more aggressively leverage policy space to engender access to cheaper medicines.