[Ip-health] Re: [Commons-Law] Flaws, plagiarism in Mashelkar Report

[chan park]

--
[ Picked text/plain from multipart/alternative ]
correction: the link for the cptech site is:  http://www.cptech.org/ip/heal=
th/c/india/feb07/

chan park <chansoobak@yahoo.com> wrote: Below is the text from an article i=
n this morning's edition of the Times of India, detailing some troubling re=
velations regarding the recent Mashelkar Committee report.  Our friends at =
the Alternative Law Forum and CPTech have been kind enough to post the supp=
orting documentation substantiating these claims.  Please visit:

http://www.altlawforum.org/ADVOCACY_CAMPAIGNS/mashelkar

or

http://www.cptech.org/ip/c/india/

for more information.  The authors would like to thank Rajesh Sagar of Quee=
n Mary Intellectual Property Institute for his invaluable contribution.

.......

LEADER ARTICLE: Patent Wrong


    The Mashelkar Report on Patent Law Issues was released recently and und=
erstandably, you missed it. But it will be a pity if the report continues t=
o go unnoticed, because its recommendations if accepted could dramatically =
increase the price we pay for medicines.

   Leukemia patients, for instance, could see the cost of their medication =
increase by 12 times. Technically speaking, the report is funda-mentally fl=
awed. Ethically speaking, it substitutes irresponsible plagiarism for analy=
sis. Patents are limited monopolies granted by national governments and reg=
ulated by WTO.

   In theory, the logic is deceptively straightforward: the discovery of ne=
w medicines costs money; companies need an incentive to make this investmen=
t; patents provide that protection.

   In practice, multinational pharmaceutical companies have turned  the sys=
tem on its head, earning them ire from trade economists like Jagdish Bhagwa=
ti and Joseph Stiglitz, among others.

   As their pipeline of truly innovative drugs slows to a trickle, they hav=
e focused their energies on patenting minor tweaks to existing drugs in ord=
er to extend monopolies whenever possible.



   In trade circles, this is called 'evergreening' a process that the Mashe=
lkar report asks us not to confuse with "incremental innovation" though it'=
s hard to tell them apart. To you and me, this translates into an infinite =
monopoly a lifetime of artificially high prices for medicines because only =
one manufacturer is allowed to supply the market.

   The furore over affordable medicines intensified in 2005, when India ame=
nded its patent law to comply with  the TRIPs agreement. Among the problems=
 to be ironed out: Could India limit patents on medicines to those that are=
 truly new and innovative and yet keep in line with TRIPs?

   Enter Mashelkar. Charged with two questions, one of which is whether it =
would be TRIPs-compatible to "limit the grant of patent for a pharmaceutica=
l substance to a new chemical entity or to a new medical entity involving o=
ne or more inventive steps" his committee concludes that it would not, addi=
ng that it is not in "national interest".

   Consider how it reached these conclusions. The committee, chaired by Mas=
helkar and comprising four others, was cons-tituted by the commerce ministr=
y in April 2005. Their report was submitted to the ministry in December 200=
6. For one and a half years of work, the analysis is thin not more than a f=
ew pages.

   It is  surprising then that most of the conclusions with respect to new =
chemical entities (half the exercise of the entire report) have been extrac=
ted verbatim from a paper published earlier in 2006 by the IP Institute, a =
UK-based industry think tank.



   Its author, Shamnad Basheer, identifies his funding for the paper as com=
ing from Interpat "a Swiss association of major European, Japanese and US r=
esearch-based pharmaceutical companies".

   Basheer waxed jubilant about the Mashelkar report on his blog: "A very s=
ensible suggestion to me not least because these conclusions were extracted=
 from a report that I submitted to the committee...

   It flatters one to know that the extraction happened verbatim, though I =
would have been happier had the committee cited the  source..." So let's ge=
t this straight.

   A committee of five renowned experts takes one and a half years to delib=
erate over a patent law issue that's crucial to millions of people, and fin=
ally produces a report whose conclusions are lifted, without acknowledgemen=
t, from a paper funded by the multinational pharmaceutical industry.

   We couldn't make this up if we tried. Consequently, it's difficult for u=
s to take this report seriously. But we shall try. India's patent law has p=
rovisions to prevent 'ever greening'. If a patent is sought on an improveme=
nt, that improvement must actually make the medicine more effective.



   As logical as this may seem, it is not in the interests of multinational=
s though India could have set patent standards even higher, since  TRIPs ex=
plicitly leaves this flexibility in sovereign hands.

   The Mashelkar report's twisted logic conveniently overlooks these flexib=
ilities, even the judgment of the WTO on this matter. Now, the multi-nation=
al pharmaceutical lobby is planning to use this same twisted logic to cast =
doubt on the few protections that are in place in existing law.

   There are millions who need cheap medicines from India in order to stay =
alive. Mashelkar's 'national interest', however, is a fantasy that refers t=
o something else: the Indian pharmaceutical industry. Nothing wrong with th=
is, except that the report's purported beneficiaries don't agree with their=
 benefactor.

   The Indian Pharmaceutical Alliance, representing the domestic pharmaceut=
ical sector, has slammed the conclusions of the Mashelkar report as not in =
their interests. What's  more, it recently intervened in a legal case curre=
ntly pending in the Madras high court to defend the validity of a provision=
 in the Patents Act that sets stricter patent criteria.

   Challenging this provision is pharmaceutical giant Novartis. Coincidenta=
lly, Novartis is a financial contributor to Interpat. Mashelkar's report is=
 among the first attempts to dent an already compromised patent system.



   Certainly, more attempts will follow like the issue of pharmaceutical da=
ta exclusivity, currently on the US bilateral agenda, and designed to delay=
 the entry of affordable generic medicines.

   The genius of this report lies in how it exhorts itself as simultaneousl=
y for Indian patents, for Indian companies, for the nation and for the rule=
 of international law  while actually only serving the interests of a few p=
harmaceutical giants. It's a remarkable sleight of hand.

   The question is: Will the Indian government be fooled?

Park is with the Lawyers Collective and Prabhala is an IPR researcher.

http://timesofindia.indiatimes.com/OPINION/Editorial/LEADER_ARTICLE_Patent_=
Wrong/articleshow/1593525.cms



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