Enforcing patent rights against goods in transit:A new threat to transborder trade in generic medicines

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Journal Title

SA Mercantile Law Journal = SA Tydskrif vir Handelsreg: Transborder Commercial Law

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Volume Title

Juta Law



Intellectual property (IP) protection has critical consequences for transnational trade in generic medicines, one of South Africa's most important imports. The free transit of generic medicines, unhindered by patent claims, is essential for their importation into South Africa where they will be deployed to prolong or save lives. This article will discuss the import of using Council Regulation (EC) No 1383/2003 to halt the transit of generic medicines en route to developing countries. Dutch customs authorities have done this on several occasions, eg, in February 2009. Such action forces importing and exporting states to find alternative routes that may be more expensive and take longer than a route that traverses Dutch ports. Such a situation would obviously be contrary to the freedom of transit provided for by art 5 of the General Agreement on Tariffs and Trade (GATT). Secondly, when consignments of medication do not reach their destinations, lives may be lost. This reverses the gains of the major battles won in South Africa and other developing countries to improve access to generic medicines. Thirdly, using patents to block, or delay, the provision of generic medication to ill people is unacceptable, because it violates the very foundations of, or justifications for, patent law. As shown by the quotation above, patents are intended to secure the public good, by enabling the production of, and trade in, useful goods.