[Ip-health] DNA: Empty Allegations

[Achal Prabhala]

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http://dnaindia.com/report.asp?NewsID=3D1081968


Empty allegations
Sunday, February 25, 2007  20:32 IST



Shamnad Basheer


Faced with allegations of plagiarism, Dr R A Mashelkar has withdrawn the re=
port of the Committee he was heading. Many critics have alleged that the Co=
mmittee =91plagiarised=92 key conclusions from a report I wrote. In their a=
ttempt to discredit the Committee, they have also called into question my a=
cademic integrity. I therefore thought this an opportune time to reflect on=
 the current discussions around the report, which unfortunately, have been =
premised on factual inaccuracies and mistaken assumptions.

I first deal with their charge of plagiarism. It is unfortunate that certai=
n statements from my blog (spicyipindia.blogspot.com) were drawn upon to su=
pport the allegation that the Committee =91plagiarized=92 from my report. T=
his is not correct, as amply borne out by the last sentence in the blog: =
=93To be fair to the Committee, they did include the crux of my submission =
in an Annex to their Report.=94

In other words, the Committee did include the key points in my submission a=
s an Annexure, as they did with every other submission (about 24 in all) th=
at was made to them. Those with the patience to read the entire report incl=
uding the Annexures would have gathered that some of the Committee=92s obse=
rvations were only borrowed from my report and not =91plagiarized=92.

The Committees mandate was to address the following issues:

a) Whether it would be TRIPS (Trade Related Aspects of Intellectual Propert=
y) compatible to limit the grant of patent for pharmaceutical substance to =
new chemical entity [NCE] or to new medical entity involving one or more in=
ventive steps; and
b) Whether it would be TRIPS compatible to exclude micro-organisms from pat=
enting.

These are critical issues for the Indian pharmaceutical industry. The manda=
te was only to examine whether certain prospective provisions that are soug=
ht to be introduced into Indian patent law would be compatible with the WTO=
 Agreement on TRIPS. The Committee was not mandated to examine provisions t=
hat already existed in the patent regime.

The key conclusions of the Mashelkar Committee were that these two prospect=
ive provisions, if introduced into Indian patent legislation would contrave=
ne TRIPS. These conclusions were borrowed from conclusions that I had arriv=
ed at whilst doing a report on the same theme titled Limiting the Patentabi=
lity of Pharmaceutical Inventions and Micro-organisms: A TRIPS Compatibilit=
y Review. This report was commissioned by the Intellectual Property Institu=
te (IPI), UK.

This report, funded by Interpat  (an association of multinational pharmaceu=
tical companies) has caused some critics to allege that the Committee repor=
t merely reflected an industry agenda. This allegation rests of certain inc=
orrect assumptions: that anything funded by industry has to necessarily rep=
resent an industry view, despite the fact that the person commissioned hold=
s himself out as an objective and independent academic. They claim the Mash=
elkar Committee blindly relied on the conclusions of my paper, without exer=
cising any independent judgment of its own. Though, its members are disting=
uished academics and known for their integrity. Most importantly, these kin=
d of ad hominem or personal attacks do not answer the question: is there so=
mething wrong with the analysis of TRIPS undertaken by me and relied on by =
the Committee?

Having studied the subject in some detail, my own view is that the term =91=
invention=92 as used under TRIPS is to be vested with some basic meaning i.=
e. at the very least, it denotes something of =93technical=94 import. It th=
e term was freely interpretable according to the whims of member states, we=
 could end up with a situation where a member state may argue that it needn=
=92t grant patents at all, since its unique lexicon suggests that nothing e=
ver amounts to an =93invention=94 under Article 27.

Lastly, as I point out in my blog, although the Committee got it=92s conclu=
sions right, their key failing was in not demonstrating how they worked thr=
ough the TRIPS issues/analysis in their report. And to this end, it is comm=
endable that they retracted the report and offered to resubmit it. I hope e=
veryone uses this =93resubmission=94 window to engage in a fuller analysis =
with TRIPS. This will pave the way for a more robust debate on this report =
and its findings and help us move away towards a better evaluation of the s=
ubstantive issues involved here.

The author is Visiting Associate Professor of Intellectual Property Law at =
the George Washington University Law School.
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