Optimising the use of unaffordability as a ground for compulsory licensing in African patent systems

Although competition law has widely examined the issue of excessive pricing, its treatment within the patent law framework remains underexplored. This article examines how national patent laws structure grounds for compulsory licensing to address unaffordable pricing (under varying terminology) and analyses their structural limitations, with a focus on three African pharmaceutical manufacturing economies: South Africa, Nigeria, and Egypt. This comparative analysis proposes a three‐model typology for analysing unaffordable pricing as grounds for compulsory licensing to protect public health, comprising the Non‐recognition Model, Declarative Model, and Structured Model. It argues that although these models are TRIPS‐compliant, the current approaches identified under them may fail to ensure effective intervention for three primary reasons. The article highlights these three structural limitations as (i) vague or absent definitions of what constitutes an ‘unaffordable’ price, (ii) limited product scope, and (iii) inadequate procedural safeguards. With illustrative insights from other developing jurisdictions, including India and Thailand, the article concludes that these deficiencies weaken the effectiveness of compulsory licensing as a remedy for unaffordable prices in African countries, even where countries have domestic manufacturing capacity to leverage this mechanism. It proposes further opportunities to optimise the use of unaffordable pricing as grounds for compulsory licensing to ensure public health protection within patent law frameworks. National patent frameworks must utilise their flexibilities to go a step further by providing clear criteria for what constitutes an unaffordable price, expanding the scope of eligible products, and implementing safeguards for patentees' interests. The article also highlights regional approaches to compulsory licensing in Africa that treat unaffordable pricing as a ground for granting a licence.