[Ip-health] The Hindu on Plagiarism in the Mashelkar Committee Report

[chan park]

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[ Picked text/plain from multipart/alternative ]
First attempt to dent a compromised patent system                          =
                                                                           =
                                                       Chan Park and Achal =
Prabhala
                                                           Some key conclus=
ions 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 relea=
sed recently. Following the introduction in Parliament of the Patents (Amen=
dment) Bill, 2005 and the debate that took place, the Government of India r=
eferred 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, becaus=
e buried in its arcane language are recommendations, which if accepted, cou=
ld dramatically increase the price we pay for essential medicines. To cite =
one instance, leukaemia patients could see the cost of their medication inc=
rease 12 times. The story of the Mashelkar Report begins in the growing cla=
mour over patents and the dubious role of multinational pharmaceutical comp=
anies 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 stra=
ightforward: the discovery of new medicines costs money; companies need an =
incentive to make this investment; patents provide that protection. In prac=
tice, there is a big problem. Multinational pharmaceutical companies have t=
urned 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 pate=
nting minor tweaks to existing drugs in order to squeeze out an ever-extend=
ing monopoly whenever possible. In trade circles, this is called "evergreen=
ing" =97 a process that the Mashelkar Report asks us not to confuse with "i=
ncremental innovation" although, honestly, it is hard to tell them apart. T=
his translates into an infinite monopoly =97 instead of merely a 20 year on=
e =97 a lifetime of
 artificially high prices for essential medicines because only one manufact=
urer 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 d=
issatisfied. Among the problems to be ironed ou    t was this: could India =
limit patents on medicines to those that are truly new and innovative and y=
et keep in line with TRIPS? Enter a technical expert group on patent law is=
sues headed by Dr. Mashelkar, eminent Indian scientist. Charged with two qu=
estions, one of which was whether it would be TRIPS-compatible to "limit th=
e grant of patent for a pharmaceutical substance to a new chemical entity o=
r to a new medical entity involving one or more inventive steps" =97 his co=
mmittee 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. M=
ashelkar and comprising four other experts (Professors Goverdhan Mehta, Asi=
s Datta, N.R. Madhava Menon, and Moolchand Sharma) was constituted by the M=
inistry 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 seco=
ndary data and summaries of submissions by outside parties.
 It is surprising then that many of the conclusions with respect to new che=
mical entities (and half the exercise of the entire report) have been extra=
cted, almost word for word, from a paper published earlier in 2006 ("Limiti=
ng the Patentability of Pharmaceutical Inventions and Micro-organisms: A TR=
IPS Compatibility Review") by the Intellectual Property Institute, a United=
 Kingdom-based industry-friendly think-tank and submitted to the group by i=
ts author, Shamnad Basheer. A doctoral student and an Associate at the Oxfo=
rd Intellectual Property Research Centre, University of Oxford, he disclose=
s 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 Eur=
opean, 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 th=
e Mashelkar group's conclusions: "... A very sensible suggestion to me =97 =
not least because these conclusions were extracted from a report that I sub=
mitted to the Committee. This report was commissioned by the Intellectual P=
roperty Institute (IPI), UK, in my capacity as an independent/objective con=
sultant with some modest knowledge of Indian patent law/policy. It flatters=
 one to know that the extraction happened verbatim, though I would have bee=
n happier had the Committee cited the source =97 but perhaps this is too mu=
ch 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 deliber=
ate 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 Int=
erpat, an association of major multinational pharmaceutical companies.
 When India amended its patent law in 2005, it included some unique provisi=
ons to ensure that pharmaceutical companies could not "evergreen" with impu=
nity. 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 e=
ven higher, since TRIPS explicitly leaves this flexibility in sovereign han=
ds.
 The strange logic in the Mashelkar technical group's report overlooks thes=
e flexibilities, even the judgment of the WTO on this matter =97 and, in ef=
fect, declares it incompatible with TRIPS for India to set stricter standar=
ds for patenting. Now the multinational pharmaceutical lobby is planning to=
 use this same twisted logic to cast doubt even on the few, hard-won protec=
tions 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 pharmac=
eutical industry. Nothing wrong with this per se, except that the report's =
purported beneficiaries do not agree with their benefactor. They seem to wa=
nt stricter patent criteria just as much as us. The Indian Pharmaceutical A=
lliance, which represents 90 per cent of the R&D expenditure in the domesti=
c pharmaceutical sector, recently intervened to defend the validity of prec=
isely such an existing legal provision that multinational pharmaceutical gi=
ant Novartis (and contributor to Interpat) is currently challenging. Furthe=
rmore, the Indian Pharmaceutical Alliance has explicitly said that the conc=
lusions of the Mashelkar report are not in their interests.
 This report is among the first attempts to dent an already compromised pat=
ent system. Certainly, more attempts will follow =97 such as the issue of p=
harmaceutical data exclusivity designed to delay the entry of affordable ge=
neric medicines.
                                            (Chan Park is with the Lawyers =
Collective HIV/AIDS Unit. Achal Prabhala researches intellectual property r=
ights. The authors thank Rajesh Sagar at Queen Mary Intellectual Property I=
nstitute.)


http://www.hindu.com/2007/02/12/stories/2007021203681100.htm



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