131. As indicated in our intervention at the last TRIPS Council, South Africa is in favour of a more granular discussion of the three agenda item which informally have become known as the 'triplets'. I will deal with each of these agenda items in turn.
Review of the Provisions of Article 27.3(b)
132. Many developing countries advocate for the amendment of Article 27.3(b) of TRIPS to prohibit patents on life forms, this also includes diagnostic, surgical or therapeutic methods for the treatment of humans or animals. It also includes the policy flexibility not to grant patent exclusivity for the use of existing drugs for treatment of COVID-19.
133. Countries may want to consider how to consider such exclusions from patentability based on current issues of diagnostics and treatment brought up in the context of COVID-19. Even in countries where a new use for an existing drug is in principle patentable, it will not always meet the conditions for patent protection, in particular the inventive step which is required. If these policies are not already in place, amendments to existing laws may take a long time to put into effect. South Africa is a non-examining jurisdiction which means that virtually every patent application that is filed, will be granted. Between January 2005 and July 2015, 40,131 patents originating from all over the world which were registered in South Africa, only 4064 of those patents had a South African origin.
134. We are now attempting to fix this by introducing formal examination as envisaged in our IP Policy. The IP Policy sets out a range of proposals relating to key aspects of patent law that have an impact not only on public health but more broadly. In addition to substantive search and examination, IP Policy addresses the following issues (amongst others) - patent oppositions, patentability criteria, parallel importation, exceptions and compulsory licences.
135. In the context of COVID-19, this ongoing legal reform will come too late to save even a single life where abuses of intellectual property rights lead to barriers to access. The South African patent landscape is characterized by the easy grant of patents of dubious quality and value, as well as the enforcement of a legal framework that appears to be heavily skewed in favour of patentees. What this means in practice is that in exchange for very little, market exclusivity is easily granted, and maintained, ordinarily at a high cost to society.
Relationship between the TRIPS Agreement and the Convention on Biological Diversity
136. As indicated in your introduction we would once again note our request for the update of the three factual notes and the request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD.
Protection of Traditional Knowledge And Folklore
137. South Africa would like to thank WIPO for the presentation, and would like to acknowledge the proposal by the delegation of Zimbabwe in the July 2020 TRIPS Council meeting to invite the organisation to brief the TRIPS Council. We note the outcome of the WIPO Assemblies of Members' decision to renew the mandate for the IGC for the 2020-2021 biennium, as well as the work plan for the IGC.
138. Irrespective of the nature of the outcome and form of instrument envisaged under the IGC process in WIPO, it is our considered opinion that the best way to ensure the proper use of genetic resources and associated traditional knowledge is through an amendment to the TRIPS Agreement as set out in document TN/C/W/59 and subject to a legally binding two-tier dispute settlement processes as envisaged under the DSU.