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<nettime> Plagiarism by Indian committee on patents: The Black, white &
Frederick Noronha on Tue, 13 Feb 2007 03:46:14 +0100 (CET)


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<nettime> Plagiarism by Indian committee on patents: The Black, white & Grey of Indian Patent Amendment


From: "Anivar Aravind" <anivar.aravind {AT} gmail.com>
Date: Mon, 12 Feb 2007 20:37:17 +0530

Hi all,

Here is something that will shock all of us!! An "expert" committee
set up sometime ago by the Ministry of Commerce with R.A. Mashelkar
(ex-CEO of CSIR) as its chairman to examine whether certain provisions
in India's new patent regime were compatible with TRIPS.It submitted
the report in Dec 200. It seems that the committee's conclusions
(which has far reaching consequences) have been "borrowed, without
acknowledgement" from a study funded by an industry-sponsored think
tank based in the UK.

Here is the op-ed.
Copied from   http://www.hindu.com/2007/02/12/stories/2007021203681100.htm


First attempt to dent a compromised patent system

 Chan Park and Achal Prabhala

Some key conclusions of the Mashelkar report are borrowed, without
acknowledgement, from U.K.-based research funded by Interpat, an
association of major multinational pharmaceutical companies.

 THE `REPORT of the Technical Expert Group on Patent Law Issues,' was
released recently. Following the introduction in Parliament of the
Patents (Amendment) Bill, 2005 and the debate that took place, the
Government of India referred certain contentious issues to an expert
committee headed by Dr. R.A. Mashelkar for detailed examination.
Authored by technical experts, the 56-page Mashelkar report (available
at www.dipp.nic.in)  is unlikely to rivet us or elicit swift reactions
from the Government.

 However, it will be a pity if the report continues to go unnoticed,
because buried in its arcane language are recommendations, which if
accepted, could dramatically increase the price we pay for essential
medicines. To cite one instance, leukaemia patients could see the cost
of their medication increase 12 times. The story of the Mashelkar
Report begins in the growing clamour over patents and the dubious role
of multinational pharmaceutical companies in affecting national
intellectual property laws.

 Patents are limited monopolies granted by national governments and,
on the insistence of the corporate lobby, regulated by multilateral
institutions like the World Trade Organisation. In theory, the logic
is deceptively straightforward: the discovery of new medicines costs
money; companies need an incentive to make this investment; patents
provide that protection. In practice, there is a big problem.
Multinational pharmaceutical companies have turned the system on its
head. As their pipeline of truly new and innovative drugs slows to a
trickle, they have chosen to focus their energies on patenting minor
tweaks to existing drugs in order to squeeze out an ever-extending
monopoly whenever possible. In trade circles, this is called
"evergreening" =97 a process that the Mashelkar Report asks us not to
confuse with "incremental innovation" although, honestly, it is hard
to tell them apart. This translates into an infinite monopoly =97
instead of merely a 20 year one =97 a lifetime of artificially high
prices for essential medicines because only one manufacturer is
allowed to supply the market.

 The furore over affordable medicines in India reached a crescendo in
2005, when India amended its patent law to comply with a WTO agreement
known as TRIPS. The amendment left local patients and foreign
corporations equally dissatisfied. Among the problems to be ironed out
was this: could India limit patents on medicines to those that are
truly new and innovative and yet keep in line with TRIPS? Enter a
technical expert group on patent law issues headed by Dr. Mashelkar,
eminent Indian scientist. Charged with two questions, one of which was
whether it would be TRIPS-compatible to "limit the grant of patent for
a pharmaceutical substance to a new chemical entity or to a new
medical entity involving one or more inventive steps" =97 his committee
concluded that it would not, adding that it is not in the "national
interest."

 Analysis thin


 Consider how it reached these conclusions. The committee, chaired by
Dr. Mashelkar and comprising four other experts (Professors Goverdhan
Mehta, Asis Datta, N.R. Madhava Menon, and Moolchand Sharma) was
constituted by the Ministry of Commerce and Industry in April 2005.
Its report was submitted to the Ministry in December 2006. For a
year-and-a-half of work, the analysis is thin, spread across a few
pages in a report otherwise populated by secondary data and summaries
of submissions by outside parties.

 It is surprising then that many of the conclusions with respect to
new chemical entities (and half the exercise of the entire report)
have been extracted, almost word for word, from a paper published
earlier in 2006 ("Limiting the Patentability of Pharmaceutical
Inventions and Micro-organisms: A TRIPS Compatibility Review") by the
Intellectual Property Institute, a United Kingdom-based
industry-friendly think-tank and submitted to the group by its author,
Shamnad Basheer. A doctoral student and an Associate at the Oxford
Intellectual Property Research Centre, University of Oxford, he
discloses in a footnote in his paper that his research was
commissioned by the IPI and financially supported by Interpat =97 "a
Swiss association of major European, Japanese and US research-based
pharmaceutical companies committed to the improvement of intellectual
property laws around the world."

On his blog [spicyipindia.blogspot.com], Mr. Basheer was jubilant
about the Mashelkar group's conclusions: "... A very sensible
suggestion to me =97 not least because these conclusions were extracted
from a report that I submitted to the Committee. This report was
commissioned by the Intellectual Property Institute (IPI), UK, in my
capacity as an independent/objective consultant with some modest
knowledge of Indian patent law/policy. It flatters one to know that
the extraction happened verbatim, though I would have been happier had
the Committee cited the source =97 but perhaps this is too much to ask
of a Committee caught in between a political crossfire and a deft
stalling exercise."

 So a committee of five renowned experts takes a year and a half to
deliberate over a patent law issue that is crucial to millions of
people in India, and finally produces a report whose key conclusions
are borrowed, without acknowledgement, from a paper funded through a
U.K.-based think-tank by Interpat, an association of major
multinational pharmaceutical companies.

 When India amended its patent law in 2005, it included some unique
provisions to ensure that pharmaceutical companies could not
"evergreen" with impunity. It stipulated that if a pharmaceutical
company wanted a patent for an improvement on an already existing
drug, it must show that the improvement actually made the drug more
effective. However logical this may seem to us, it is clearly not in
the interests of the multinational corporate lobby =97 although the fact
remains that India should have set patent standards even higher, since
TRIPS explicitly leaves this flexibility in sovereign hands.

 The strange logic in the Mashelkar technical group's report
overlooks these flexibilities, even the judgment of the WTO on this
matter =97 and, in effect, declares it incompatible with TRIPS for India
to set stricter standards for patenting. Now the multinational
pharmaceutical lobby is planning to use this same twisted logic to
cast doubt even on the few, hard-won protections that are in place in
our existing law.

 There are a large number of people afflicted with cancer and
HIV/AIDS who need cheap medicines from India in order to stay alive.
The Mashelkar group's report frankly identifies the focus of its
fantasies: the Indian pharmaceutical industry. Nothing wrong with this
per se, except that the report's purported beneficiaries do not agree
with their benefactor. They seem to want stricter patent criteria just
as much as us. The Indian Pharmaceutical Alliance, which represents 90
per cent of the R&D expenditure in the domestic pharmaceutical sector,
recently intervened to defend the validity of precisely such an
existing legal provision that multinational pharmaceutical giant
Novartis (and contributor to Interpat) is currently challenging.
Furthermore, the Indian Pharmaceutical Alliance has explicitly said
that the conclusions of the Mashelkar report are not in their
interests.

 This report is among the first attempts to dent an already
compromised patent system. Certainly, more attempts will follow =97 such
as the issue of pharmaceutical data exclusivity designed to delay the
entry of affordable generic medicines.

(Chan Park is with the Lawyers Collective HIV/AIDS Unit. Achal
Prabhala researches intellectual property rights. The authors thank
Rajesh Sagar at Queen Mary Intellectual Property Institute.)

Some more Links

See the Flowchart comparing Mashelkar Commitee Report & INTERPAT report
http://www.altlawforum.org/ADVOCACY_CAMPAIGNS/mashelkar/Flowchart%20compari=
ng%20Mashelkar%20Committe%20and%20INTERPAT.pdf

More Details are in Cptech (Consumer Project on Technology archive)
http://www.cptech.org/ip/health/c/india/feb07/

TOI Report By Achal
Mashelkar Committee Report substantially based on study commisioned by INTE=
RPAT
http://timesofindia.indiatimes.com/OPINION/Editorial/LEADER_ARTICLE_Patent_=
Wrong/articleshow/1593525.cms

Kudos to SPICY IP blog: all started from here
http://spicyipindia.blogspot.com/2007/01/mashelkar-committee-report-on-pate=
nts_28.html


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