[Ip-health] Re: [Commons-Law] DNA: Empty Allegations

[Sunil Abraham]

A more complete version from the Spicy IP Blog:

http://spicyipindia.blogspot.com/2007/02/deconstructing-mashelkar-committee=
.html

Coming as I do from the relatively apolitical world of research and
academia, the events of the last two weeks have taken me by surprise and
left me wondering as to how easy it is for the substantive issues in any
debate to get sidelined.

I thought I=E2=80=99d reflect on the =E2=80=9Creal=E2=80=9D issues surround=
ing this controversy
once the =E2=80=9Cname=E2=80=9D calling and personal/ad hominem attacks had=
 died down.
But it only seems to be getting worse. Friends keep asking me as to why
I haven't said anything on my blog yet. I therefore thought this an
opportune time to attempt to deconstruct some of the arguments that are
being flung around in this controversy.

I wrote a letter to the TOI and Hindu in response to the editorials that
first sparked off this controversy and include it below.Unfortunately,
despite more than a week going by, neither of these papers have
published this. Fortunately, the DNA carries some of the key points that
I'd stated in the respose to the TOI and the Hindu. See
http://dnaindia.com/report.asp?NewsID=3D1081968.

Also, the Hindu Business Line carried my interview where I have tried to
clarify some of the factual inaccuracies regarding this debate--see
http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm


TO THE EDITOR OF THE TIMES OF INDIA

Dear Sir/Madam:

This refers to your article dated 12 February 2007, titled =E2=80=9CPatent
Wrong=E2=80=9D by Chan Park and Achal Prabhala. In the process of critiquin=
g the
Mashelkar Committee Report, the authors have called into question my
academic integrity, albeit indirectly. They have also alleged that the
Committee =E2=80=9Cplagiarized=E2=80=9D key conclusions from my submission.

I first deal with their charge of plagiarism, since I am the alleged
=E2=80=9Cvictim=E2=80=9D here. They attempt to substantiate their claim of =
plagiarism by
selectively quoting from my blog. They however omit the most critical
part of my blog statement in this regard =E2=80=9CTo be fair to the Committ=
ee,
they did include the crux of my submission in an Annex to their Report.=E2=
=80=9D

In other words, the Committee did include my submission as an Annexure,
as they did with every other submission (about 24 in all) that was made
to them. It bears noting in this regard that the Committee received
submissions from a variety of IP stakeholders including industry
(Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms
(Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired
members of the judiciary (Justice Krishna Iyer). Those with the patience
to read the entire report including the Annexures would have gathered
that some of the Committee=E2=80=99s observations were borrowed from my rep=
ort
to them. This being so, qualifying their borrowing of some of my
conclusions as =E2=80=9Cplagiarism=E2=80=9D is incorrect.

Park and Prabhala may not have intended this, but their writing casts
aspersions on my academic integrity. If I understand their argument
correctly, it runs something like this:

1. Shamnad Basheer is commissioned to write a paper on certain TRIPS
issues for the purpose of submission to the Mashelkar Committee.
2. The paper is commissioned by the Intellectual Property Institute
(IPI), with funding from Interpat.
3. Therefore, this paper necessarily reflects the industry position of
Interpat.
4. Therefore, Shamnad Basheer exercised no independent judgment, but
merely reiterated Interpat=E2=80=99s industry position.
5. The Mashelkar Committee was wrong to rely on the conclusions of a
paper that reflects Interpat=E2=80=99s position.


These =E2=80=9Cleaps of logic=E2=80=99 rest on certain incorrect assumption=
s:

1. Anything funded by the pharmaceutical industry has to necessarily
represent an industry view/position, despite the fact that the person
commissioned holds himself out as an objective and independent academic.
2. The IPI is an =E2=80=9Cindustry think-tank=E2=80=9D that always resonate=
s industry
positions on all issues, despite the fact that its website
(http://www.ip-institute.org.uk/) makes clear that is an independent
charitable organisation which organises and peer reviews IP research.
3. The Mashelkar Committee blindly relied on the conclusions of my
paper, without exercising any independent judgment of its own, despite
the fact that it comprises members who are highly distinguished in their
respective fields and known for their integrity.

Most importantly, the Park and Prabhala paper does no more than beg the
question: is there something wrong with the analysis of TRIPS undertaken
by me and relied on by the Committee? Park and Prabhala brush off this
rather nuanced issue on TRIPS compatibility with broad statements such
as =E2=80=9Cthe report overlooks these (TRIPS) flexibilities=E2=80=94even t=
he judgment
of the WTO on this matter=E2=80=9D.

Their note omits to explain as to what these =E2=80=9Cflexibilities=E2=80=
=9D are, or
where, in their opinion, the said flexibilities stem from and more
importantly, which judgment of the WTO they are relying on=E2=80=94particul=
arly,
when there is not =E2=80=9Cone=E2=80=9D but several WTO panel decisions dea=
ling with
TRIPS.

Article 27 of TRIPS mandates that patents shall be granted to all
=E2=80=9Cinventions=E2=80=9D in all =E2=80=9Cfields of technology=E2=80=9D,=
 provided such inventions are
new, non obvious and have utility. Having studied TRIPS in some detail
and now teaching it to graduate students at the George Washington
University, my own view (as expressed to the Committee in more than 35
pages in a report that is now the subject matter of controversy) is that
the term =E2=80=9Cinvention=E2=80=9D as used in Article 27 of TRIPS is to b=
e vested with
some basic meaning i.e. at the very least, it denotes something of
=E2=80=9Ctechnical=E2=80=9D import. Were it to be a term =E2=80=9Cfreely=E2=
=80=9D interpretable
according to the whims of member states, we could end up with a
situation where a member state may argue that it needn=E2=80=99t grant pate=
nts
at all, since its unique lexicon suggests that nothing ever amounts to
an =E2=80=9Cinvention=E2=80=9D under Article 27. In short, the term inventi=
on would be
rendered redundant and such a result would fly in the face of a basic
tenet of treaty interpretation that is well accepted under international
law=E2=80=94that one cannot read a treaty term in a manner as to render it
redundant.

Incremental pharmaceutical inventions are very =E2=80=9Ctechnical=E2=80=9D =
in nature,
and ought to fall within even the lowest common denominator that any
sensible reading of the term =E2=80=9Cinvention=E2=80=9D would offer. As su=
ch, their
exclusion from patentability (when the other patentability criteria of
novelty, non obviousness and utility are satisfied) is likely to
contravene the mandate under Article 27 to grant patents to all
=E2=80=9Cinventions=E2=80=9D.

Unfortunately, Park and Prabhala fail to engage with any of these
substantive TRIPS issues. They may have had the best of intentions, but
what they=E2=80=99ve engaged in amounts to what can at best be described as=
 an
adhominem argument which, according to Wikipedia, =E2=80=9Cconsists of repl=
ying
to an argument by attacking or appealing to the person making the
argument, rather than by addressing the substance of the argument. It=E2=80=
=A6..
consists of criticizing or personally attacking an argument's proponent
in an attempt to discredit that argument.=E2=80=9D

The authors also reference section 3(d), a highly controversial section
that is the subject matter of a lawsuit by Novartis in this debate, when
the Committee never really speaks about section 3(d) in their report. It
bears noting that the Committees mandate was never to examine the TRIPS
compatibility of section 3(d) or of any existing provision in the Indian
Patents Act and to be fair to them, they never engaged in this
exercise.

This being so, it is rather far fetched to allege a =E2=80=9Cconspiracy=E2=
=80=9D theory,
simply because the Mashelkar Committee chose to adopt some of the
positions advocated in my paper and to use some of the language from my
paper. One has to bear in mind that this Committee was commissioned by
the Government to come to a conclusion as independent technical experts.
They were entitled to deliberate, seek outside guidance and then come to
their own conclusions as they deemed fit. Of course, as I point out in
my blog, although they got their conclusions right, the key failing of
the Committee is in not demonstrating how they worked through the TRIPS
issues/analysis in their report. Park and Prabhala conveniently ignore
this not so =E2=80=9Cwaxing jubilant=E2=80=9D reception to the Committee Re=
port in my
blog.

A =E2=80=9Cthin analysis=E2=80=9D, appears to be their main grudge against =
the Mashelkar
Committee Report. It=E2=80=99s a sheer pity that the authors failed to use =
this
fantastic opportunity (very rarely does one get space in the editorials
of two leading newspapers on the same day) to =E2=80=9Cfatten=E2=80=9D thei=
r own
analysis.

The author is the Frank H Marks Visiting Associate Professor of
Intellectual Property Law at the George Washington University law
School, where he teaches a course on TRIPS, pharmaceutical patents and
public health.

Shamnad Basheer
Frank H Marks Visiting Associate Professor of Law
George Washington University Law School
Washington DC-- 20052
Ph: 001 (202) 957 3442
Email: sbasheer@law.gwu.edu


On Sun, 2007-02-25 at 23:57 +0530, Achal Prabhala wrote:
>   http://dnaindia.com/report.asp?NewsID=3D1081968     Empty allegations
> Sunday, February 25, 2007  20:32 IST       Shamnad Basheer