[Ip-health] [ManagingIP] Mashelkar withdraws Indian patent report

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Mashelkar withdraws Indian patent report
Peter Ollier, Hong Kong

A row about plagiarism has led scientist R A Mashelkar to withdraw a key re=
port about patentability prepared for the Indian government.

The report was written by a team of IP specialists appointed by the Ministr=
y of Commerce in 2005. The group was led by former head of the Council of S=
cientific and Industrial Research, R A Mashelkar, and its report, finalized=
 in December, concluded that the country's patent law would not be TRIPs-co=
mpliant if it limited the granting of patents to new chemical entities.

But now it has emerged that the wording of a number of the report's conclus=
ions is similar to wording used in a report written by Shamnad Basheer for =
the UK's Intellectual Property Institute which was submitted to the Mashelk=
ar Committee during its consultation process.

"We have found that several sentences in the panel's report are identical t=
o one of the submissions made to us by an interest group ... It [the report=
] will be re-drafted and a fresh report will be submitted within three mont=
hs, after all technical inaccuracies in the existing one are rectified," Ma=
shelkar told the Indian Business Standard newspaper.

For example, in the report prepared by Basheer, the author says: "If the ai=
m of the proposed exclusion is to prevent a phenomenon loosely referred to =
as 'ever-greening', this can be done by a proper application of patentabili=
ty criteria as present in the current patent regime."

He goes on to say: "It is important to distinguish the phenomenon of 'everg=
reening' from what is commonly referred to as 'incremental innovation'. Whi=
le 'ever-greening' refers to an undue extension of a patent monopoly, achie=
ved by executing trivial and insignificant changes to an already existing p=
atented product, 'incremental innovations' are sequential developments that=
 build on the original patented product and may be of tremendous value in a=
 country like India."

These passages are similar to sections of the Indian Report of the Technica=
l Expert Group on Patent Law Issues. It says: "If the aim of limiting paten=
ts to new chemical entities is to prevent a phenomenon loosely referred to =
as 'ever-greening', this can be done by a proper application of patentabili=
ty criteria as present in the current patent regime."

"It is important to distinguish 'ever-greening' from what is commonly refer=
red to as 'incremental innovation'. While 'ever-greening' refers to an exte=
nsion of a patent monopoly, achieved by executing trivial and insignificant=
 changes to an already existing patented product, 'incremental innovations'=
 are sequential developments that build on the original patented product an=
d may be of tremendous value in a country like India."

A key passage in the Mashelkar report dealing with whether it would be TRIP=
s-compliant to limit grants of patents to new chemical entities (it conclud=
es it would not) also closely mirrors the conclusions in Basheer's report.

In his blog Basheer, a doctoral student at the Oxford Intellectual Property=
 Research Centre, points out the similarities and says: "It flatters one to=
 know that the extraction happened verbatim, though I would have been happi=
er had the Committee cited the source."

It is unclear whether the redrafted report will be different in substance o=
r will simply rephrase the relevant paragraphs. Leena Menghaney, a campaign=
er for humanitarian organization M=E9decins Sans Fronti=E8res in India, whi=
ch urged the Mashelkar Committee to recommend making it tougher to patent p=
harmaceuticals, told MIP Week that the report "hasn't been soundly argued. =
It needs to give legal and technical grounds for its conclusions".

Campaigning organizations have also noted that Basheer says in his report t=
hat his research was financially supported by Interpat. He describes this a=
s "a Swiss association of major European, Japanese and US research based ph=
armaceutical companies committed to the improvement of intellectual propert=
y laws around the world".

In an interview with Indian newspaper The Hindu, Mashelkar said that it was=
 "mischievous" to suggest that multinational pharmaceutical industries had =
funded the report and said: "We are not aligned to any industry."

The revelation about the incorporation of parts of Basheer's report into th=
e Mashelkar Committee's report comes as the Chennai High Court deliberates =
in a case brought by Swiss pharmaceutical company Novartis.

The drugs company is challenging the rejection of its patent for cancer-tre=
ating drug Glivec and also claims that section 3(d) of India's patent law, =
which defines what is not patentable under the country's law, is not compat=
ible with TRIPs. The pharmaceutical company made its closing arguments in c=
ourt today, although it is not known when a ruling will be made.

In an open letter sent to NGOs at the end of January, Novartis explained wh=
y it was taking legal action in India. The company said: "Many of the point=
s we have raised around India's patent laws have been corroborated by the r=
ecent Mashelkar Committee report on patent issues in India. The Government-=
established Mashelkar Committee voiced its views in favor of incremental in=
novation and held that certain provisions of the Indian Patent Act are not =
compliant with international agreements, specifically WTO's TRIPS agreement=
."

Last week Representative Henry Waxman, chair of the influential US House Co=
mmittee on Oversight and Government Reform and co-sponsor of key legislatio=
n regulating the US pharmaceutical industry, urged Novartis to drop its cas=
e.

MIP Week welcomes your feedback on this or any other story. Please email th=
e author with your comments. Letters may be published online.



This article is FREE access as part of MIP Week. Take a two week trial to M=
IP and find many more related articles.
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