Thread by @senamisomoyo

Good People!! It’s time for #IPThursday with your Favourite Lawyer. The following thread tells the story of a war which sadly had many casualties.

At its core, it was IP Law vs Human Rights Law, Patent Law vs Access to healthcare and in the media:

Big Pharma vs Nelson Mandela

Our story begins in 1981 in the USA. Media outlets had started reporting that a lot of gay men had presented with “advanced cancer like” symptoms, however, they were dying almost immediately. What was worse, was that there was no treatment or cure for this new disease

Soon thereafter, the new disease was identified by the CDC as AIDS. It caused mass hysteria and panic in the US as people were dying,but there was still no cure or treatment in sight.

A few years later in 1983, this man, Robert Gallo together with a research institute in France identified a sexually transmitted virus known as HIV as the one that was causing the most instances of AIDs.

Soon thereafter, the big pharmaceutical companies in the US and other western countries had found a way to treat the virus. This was through a cocktail of medication which we now know as Anti Retro Virals (ARVs). ARVs were peoven to suppress HIV so it does not cause AIDS.

The pharmaceutical companies did not waste time and they immediately filed patents for the ARVs in the US and other countries. The drugs were then commercialised and anyone who wanted to produce them had to pay for a license from them. Trust me, the license was not cheap!

I’ll take this chance to explain what a Patent is:

In short, a Patent is an exclusive right given to someone for their NEW (NB!!) invention. Basically, if you create something new, the gvt gives you Protection by law to exploit it financially for a period of 20 years.....

What this does is it prevents anyone else from making the same thing without your permission or paying you to license it.....You got it? Simple right?

Things were starting to look up in the late 80s and early 90s. Big Pharma (a group of Pharmaceutical companies in the west) had started producing the drugs and licensing the rights to each other. Although a cure didn’t exist, most people were able to love normally thereafter.

Even the stigma about HIV being a “gay virus” were extinguished when NBA star Magic Johnson came out as HIV positive. It proved that anyone could get it. He would later become an AIDS activist. Preaching safe sex and pushing for access to medication for all.

Meanwhile in South Africa, Nelson Mandela was released from prison. He was made president in 1994. His government was immediately faced with a huge issue. HIV/AIDS had arrived in Southern Aftica and was killing thousands of people per day.

Throughout most of the 90s, Sub Saharan Africa and in particular SA were a global AIDS hotspot. South Africa quickly became the global leader in new infections.

In order to control the virus, Mandela approach led Big Pharma, the companies that had to patents to the medication to supply ARVs to SA. However, the amount of money they were charging was exorbitant.

To put it into perspective, ARV drugs at the time would have cost about $1000 USD per person, per month. In a country where most of the population barely even make that money in a year, the SA gvt felt they were being exploited by Big Pharma.

Reluctant to be bullied by Big Pharma, Mandela turned to his then Minister of health, Dr Nkosazana Dlamini Zuma (NDZ) for a solution to the dilemma. People were dying, however, the government simply did not have the money to pay Big Pharma.

With a whole lot of other responsibilities, the SA government decided to save money by cutting its spend on ARV meds and started importing them from countries in the East such as India. These were much cheaper and NDZ had found a way to get around paying Big Pharma in the west.

Dr. NDZ was crucified in western media, but she didnt care. In 1997 she pushed for a new Act to be made into law. This was the Medicine and Related Substances Act. It basically allowed SA to import ARVs from other manufacturers outside of Big Pharma at a lower price.

Big Pharma was very upset about this. They had spent a lot of money developing the drugs and a lot more on the Patent registrations. They were losing money as they had probably targeted SA as their most profitable region. They also felt what NDZ and Mandela were doing was illegal

Mandela didn’t care about all the noise, uTata just wanted to save lives. He signed the Act into law and quickly tried to import the drugs into SA as quickly as possible. Big Pharma attempted to discredit this move in the media, they even argued that the other drugs didnt work.

Big Pharma, didnt really care about saving lives, they wanted their money and their Patent rights respected. In 1998, a few months after the Act was signed Big Pharma took President Mandela to court. It was Big Pharma’s IP lawyers vs Mandela’s push for Human Rights.

Big Pharma’s case was based on the fact that SA were a member of the World Trade Organisation and they had also signed the TRIPS Agreement.

Let me briefly explain what the TRIPS is all about.....

It states that Patent holders have an exclusive right to import their patented products into member states. The member states must protect these rights or face sanctions from the WTO. The new act was obviously in violation of this. It allowed SA to import from elsewhere.

Whilst the case was ongoong, then President and VC of the US Bill Clinton and Al Gore considered imposing trade sanctions against SA. This was for Patent violation and breach of the TRIPS agreement.

At the same time, Mandela retired and NDZ was redeployed. They were replaced by Thabo Mbeki and Manto Tshabalala Msimang respectively. If Big Pharma thought Mandela and NDZ were hard to deal with, these two were a whole new problem altogether.

Mbeki and others thought Big Pharma was trying to make money off African countries. He went as far as saying that he did not believe that HIV actually causes AIDS (despite a lot of evidence to the contrary). There were even suggestions that people should just eat beetroot.

This was however a PR disaster for all involved. The reality for Mbeki was that people were dying on his watch while he was having debates about the whole thing. For Big Pharma, they had sued the most popular man (Mandela) in the world for trying to save lives. People were angry!

After a lot of societal pressure from groups such as the Treatment Action Campaign and other human rights groups, Big Pharma and its IP lawyers dropped its case against Mandela in 2001, sparking huge celebrations outside the High Court.

In addition to dropping the case, Big Pharma agreed to lower its prices for the drugs. In return for dropping the case, the SA gvt agreed to honour its obligations under the TRIPS agreement and import from Big Pharma. Win win? Not quite....

Over the years, many of the Big Pharmaceutical companies have been brought before the competition tribunal for over-pricing. This has further added to the bad press they have received over the years, using Patents to make profits.

Patents are ultimately meant to promote innovation and provide solutions, not making the rich richer. My good friend @Hanani_Hlomani just wrote an article on Patents and the loss of life. He’s gonna release it soon, give him a follow and pree his socials for it.

Big Lesson: Big Pharma has a lot of African countries by the throat and it took huge social pressure to get them to change their approach. Ultimately, Human rights will always win and Patents mean nothing when people are losing their lives. Stay Safe Good People!!!❤️💛💚

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