[Ip-health] Mashelkar committee report

[Graham Dutfield]

--------------------------------------------
Dr Graham Dutfield
Herchel Smith Senior Research Fellow in Intellectual Property Law
Queen Mary, University of London
http://www.ccls.edu/staff/dutfield.html

New address from May 2007: Graham Dutfield, Chair in International
Governance, School of Law, University of Leeds, Leeds, LS2 9JT
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Just a few reflections on the report before I shut up for good on this
subject.

The official mandate of the Mashelkar committee was to assess the TRIPS
compatibility of certain patent measures being debated in the Indian
parliament that were not actually in the existing legislation but
related to some extant measures. However, according to Mashelkar in an
interview with pharmabiz.com sent out earlier on IP Health
(http://lists.essential.org/pipermail/ip-health/2007-February/010591.htm
l), the real agenda was to assess the TRIPS compatibility of the actual
2005 amendments to the Indian patent legislation. This is what he says:

=93There is a confusion in understanding the terms of reference of the
committee. If you go back to the reference of the committee, the issue
before us was whether the amendments made were TRIPS-compatible or not.
Basically, it is a legal and technical issue. And there can be no
deviation or digression from the core issue of the committee as it
consisted of such legal experts as Madhava Menon, Goverdhan Mehta and
Asit Datta.=94

It seems very odd to me that the Indian government, of course for
reasons relating to domestic politics, commissioned a high-level group
to be seen by many as effectively performing in public the task of a WTO
dispute settlement panel and allowing (encouraging?) its conclusions to
be construed as finding India to be guilty of TRIPS violations.

One wonders how many countries=92 patent regimes would have a 100% chance
of surviving any WTO challenge. Surprisingly few I suspect. So why is
India doing this to itself? I can=92t imagine the United States government
commissioning any purportedly independent group of people to examine its
local working requirements concerning patent rights in inventions made
with federal assistance, and report back publicly. That=92s for other WTO
members to take up with them (as Brazil of course did to apparently good
political effect a few years back). One could examine many countries=92
patent laws and find questionable provisions. For example, the UK patent
law's crown use section contains public interest provisions that may
well be TRIPS incompatible. I might add that despite this, no company to
my knowledge has taken on the British government about it in the way
Novartis is doing towards India (Developing countries are of course
usually much softer targets anyway especially when they supply companies
suing them with such ammunition). Neither has the Wall Street Journal
seen fit to cast the UK as part of some axis of IP Evil in those rather
bitter editorials usually targeted at countries like Thailand and
Brazil, who seem to be the current whipping boys in Washington these
days. But this is domestic politics and I don=92t know very much about
India=92s. Certainly, from the view of an outsider it=92s most peculiar if
not perverse.

Frankly, the Mashelkar report is absolute rubbish and should be trashed
completely. And not because of the particular conclusions it came up
with. It would not have been a better quality report if the conclusions
had been the other way. One wonders how much time these committee
members spent on a report that they were apparently given 1-2 years to
produce, and that is so feeble. These people plagiarised 14 lines of
Shamnad Basheer's paper plus 22 lines comprising a slight =93repackaging=94
of the definitions of micro-organism compiled from the literature by
Margaret Llewelyn and Mike Adcock for the Quaker UN Office as presented
(and correctly cited) in Basheer's report. That=92s my count but I may
have missed more than this. So that is 36 lines from, well, not a 56
page report as the Indian press tends to state, but one that just about
stretches to 10 pages excluding annexes. As for Annex 5, this seems to
have been put together by a Brazilian law firm. But thankfully they are
named, so the committee is at least in the clear there from accusations
of plagiarism.

They were so unprofessional and incompetent that that couldn=92t even do a
proper table of contents, with the section numbering going from page 2
to 4, back to 2, 10, 15, back again to 2, and then 8-53. If this came
from my students as =93finished=94 work, I would throw it back at them. But
the audience is not me or a couple of PhD examiners: it=92s the government
and people of India. How can they look at themselves with pride when
they are so sloppy even about the most basic report writing tasks?

Let=92s now look into the text. Some of these problems were pointed out to
me by my student Rajesh Sagar but I have gone through it all myself too.
On page 2 they refer to themselves as an Expert Group. I shall resist
the temptation for cheap sarcasm and move on. Suffice it to say, this
report displays little genuine expertise.

On page 4, the first paragraph repeats what is on page 2. This means
that section 1.0 (Background) and 2.0 (Approach) contain the same text,
albeit 2.0 adds the names and job titles of these eminences. After this
it hardly gets better.

On page 5, Annex II promises to summarise patenting practices relating
to new chemical entities and micro-organisms in some countries. For
NCEs, it summarises that of just one country, the USA. As for
micro-organisms, the number of countries covered isn=92t at all great.
Such information is very easy to get. Apparently they could not be
bothered to go find it. That=92s poor.

Page 5 also promises to provide a summary of the various submissions and
presentations. Well, there are quite a few of those submissions and
presentations. In fact, they form the greater part of the whole report.
But there is little if anything in the way of synthesis or analysis of
these. One wonders how and in what way they influenced the thinking of
the commissioners. Or are they just there for window dressing?

On page 6, the report chooses not to say anything about new medical
entities except to note they are not mentioned in TRIPS. Is that not a
missed opportunity and a failure to fully comply with the terms of
reference? Looks like a cop-out to me.

I understand Professor Mashelkar is a very distinguished scientist.
Nonetheless, this is much more than just a =93slip =85 in the rush of the
last working day=94, as he called it. Having said that, this report minus
annexes could have been written by five reasonably hardworking people in
one day quite easily! As for his talk of =93technical inaccuracies=94,
that=92s an incredible euphemism for plagiarism; rather like Janet
Jackson=92s notorious =93wardrobe malfunction=94 for what others might call
=93indecent exposure=94!

Finally, the whole report looks very suspicious to me. My guess is that
the conclusions had been decided on from the start. This would explain
their total disinterest in producing any original and objective legal
and technical evidence to support those conclusions. I think they just
couldn=92t be bothered. Therein lies the real scandal of this affair, not
the plagiarism.



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