Abstract
A consideration of how and when government use and expropriation rights have come into play in relation to the pharmaceutical industry, particularly in light of the Covid-19 pandemic. The Covid-19 pandemic revealed the evident need for access to medication and life-saving equipment and highlighted the patent law barriers that exist. The study undertakes an examination of the international instruments that govern aspects of patent laws globally as well as the flexibilities provided by these instruments. The UK and Canada invoked their government use provisions to serve the need to access lifesaving medications, vaccinations, equipment and related innovations. However, these jurisdictions have not been able to pull off flawless executions of their use provisions as would have been anticipated of “first-world” countries. The cumbersome and procedurally intense processes have hindered access in many ways. South Africa, on the other hand has historically managed to hold off on using any of the use provisions that are provided for in its Patents Act. Although the Covid-19 pandemic provided South Africa with the ideal opportunity in which to exercise, implement and test the current use provisions within the South African legislation, the South African government chose not to extend its legislative hand despite the flexibilities specifically allowed for by international instruments. Instead, and of interest, is the South African decision to request the World Trade Organisation to place a temporary waiver on patents in respect of Covid-19 related medication. The waiver is not a silver bullet due to a lack of manufacturing capabilities, facilities, technical skills and know-how that South Africa faces as a developing nation. While it may have seemed to be the panacea to the patent law barriers faced by the global population, an evaluation of these restrictive factors may have steered the South African government towards utilising the available use provisions and perhaps even undertaking an enhancement and extension of the available international flexibilities as an alternative. Ultimately, it is vital that due consideration be given to the incentives that are provided to inventors who enable the betterment of society through innovations. By stripping intellectual property holders of their rights in their entirety would only have the effect of squashing further development and desire for advanced innovation. No incentive would remain for a patentee to continue investing time, money and research into developing new products. Was this a missed opportunity to test South Africa’s robust legislative framework? It is easy to chase what appears to be a more beneficial opportunity but this has the unfortunate effect of underutilising the mechanisms that are already at our disposal. KEY WORDS: patents, government use provisions, Covid-19, TRIPS flexibilities, waiver.