[Ip-health] Re: [Commons-Law] Symposium on the Challenges to
India’s
Patent Regime | NLSIU, Bangalore | April 12 & 13
denis
denisbarbosa@unikey.com.br
Tue Apr 15 17:07:03 2008
--
--
[ Picked text/plain from multipart/alternative ]
I am not addressing the issue of Shamnad Basheer,
but just your comment on "We are witnessing that
in the case of Thailand, Brazil, South Africa and
even India. How many countries are free to even
interpret provisions of the TRIPS Agreement?"
I was a Brazilian delegate to the TRIPs
exercises, as then Attorney General of the
Brazilian Patent Office and Special Assistant to
the Minister of Trade. Now out of Government, I
acted as a pro bono consultant in three of the
four compulsory license episodes in the HIV-Aids
cases. My law firm specializes on TRIPs based
patent cases, and we act on behalf of local
generics industries in practically all 300-plus
court cases involving TRIPs interpretation now adjudged in Brazil.
TRIPs may be certainly subject to interpretation;
as an academic pursuit, as it can be seen from a
series of very spirited and well meaning studies,
including our recent Borges Barbosa, Denis ,
Chon, Margaret and Moncayo von Hase, Andres,
"Slouching Towards Development in International
Intellectual Property" . Michigan State Law
Review, Vol. 2007, No. 1, 2008 Available at SSRN:
<http://ssrn.com/abstract=1081366>http://ssrn.com/abstract=1081366.
But what is actually important is the judicial
interpretation of TRIPs at the light of the
Constitution and TRIPs art. 7 and 8.
Prior to 2005, TRIPs interpretation was left to
the plaintiff´s initiative, and the Brazilian
Federal Government attorneys and federal judges
were overwhelmed by the zealous plaintiff´s
perspective, not suprisingly pro-pharma. The
entry of organized local interests in the
judicial discussion, mostly but not only as
amicus curiae has entirely transformed the perspective.
The results of the change of a diffuse public
interest in TRIPs to a concentrate number of
issues deemed of public interest may be felt in
the steep change of court interpretation. Taking
as an example the patent extension cases (patents
issued before 1995, claiming extension to 20
years on account of TRIPs, even considering that
TRIPs is applicable to Brazil only after 2000)
decided after the local interests started voicing
their positions, the graphics so indicates (blue
line shows extension denied by Federal IP specialized court):
Emacs!
At 02:00 15/4/2008, you wrote:
>[ Converted text/html to text/plain ]
>Dear Pranesh
>I fully understand and in fact appreciate your advocacy for inclusiveness.=
But
>do we talk about inclusiveness when we discuss monopolization through
>patenting and other instruments such as copyrights? How did patenting beca=
me
>an issue in the Indian context? Is it based on the independent decision
>arrived at by sovereign countries in the interest of their citizens? Was t=
he
>TRIPS Agreement part of an outcome of sovereign negotiations? The TRIPS
>Agreement is not an agreement if you examine it closely. Its interpretatio=
n is
>not an independent interpretation if you again examine closely. We are
>witnessing that in the case of Thailand, Brazil, South Africa and even Ind=
ia.
>How many countries are free to even interpret provisions of the TRIPS
>Agreement? Try to count them and if you could tell us their names, that wo=
uld
>be wonderful. The last instance of the TRIPS Amendment where each and ever=
y
>word and comma and full stop proposed by developing countries was removed =
and
>export was added as one of the patenting rights does not appear to be an
>outcome of inclusiveness. Some of these issues I have discussed in my pap=
er
>Access to Medicines, Paragraph 6 of the Doha Declaration on Public Health,=
and
>Developing Countries in International Treaty Negotiations apparently publi=
shed
>in the Indian Journal of Law and Technology, National Law School Universit=
y,
>Bangalore and as per the information given to me by Thomas the reference i=
s 2
>INDIAN J. L. & TECH 8 (2006)(since I have not received the hard copy, I ca=
nnot
>say more than this).
> Isn't the whole issue of patenting monopolization not an outcome of
>international subjugation and to put it more brutally international slaver=
y?
>Where does the issue of inclusiveness come into the picture?
>Coming to Shamnad Basheer, he is not the first person engaged by the Weste=
rn
>pharmaceutical industry to write their pamphlets. We had Ameer Attaran bef=
ore
>him and in the same University and possibly the same institute. He produce=
d
>exactly the same literature. His articles were published in Lancet and JAM=
A
>(Amir Attaran and Les Gillespie White, Do Patents for Antiretroviral Drugs
>Constrain Access to AIDS Treatment in Africa, 286 JAMA 1886, 1886-92 (2001=
))
>and you name the journals with impact factor, he was there. He was appoint=
ed
>in the Harvard University for the sole purpose of attaching the Harvard br=
and
>against his name and we were fed his paper as a great research at Harvard
>University. His salary was paid by Africa fights Malaria, a conservative
>institution financed by Western industry. It was not that the Harvard
>University was ashamed of him. But normally they do not employ people with=
out
>some good publications. The paper was a plagiarized version of Les Gillesp=
ie
>White financed by the World Intellectual Property Organization. It was not
>even the original work of Amir Attaran. Amir Attaran is right now Associat=
e
>Professor at Ottawa University along with Daniel Gervais. Writing pamphlet=
s
>does pay. I have recently seen the name of Shamnad Basheer as visiting
>Associate Professor at some American University. As I mentioned, writing
>pamphlet does pay. Life is otherwise quite tough. We have so many other pe=
ople
>extremely close to pharmaceutical industry. We have Patricia Danzon. She i=
s
>professor at the Wharton Business School. When she got the job she had jus=
t
>one book published by the American Enterprise Institute.
>Did I make my objection regarding Shamnad Basheer clear? Chan Park had don=
e
>the wonderful work in Novartis case. I happen to know a little more than C=
han
>Park regarding intellectual property law and the politics of international
>negotiations. People like Shamnad Basheer, may be very intelligent person =
but
>they do not bring respectability to any institution or any organization. T=
hey
>get some appointments. They get some invitation to the World Bank and the
>International Monetary Fund but their presence in any conference brings mo=
re
>of a disrepute to the conference rather than any inclusiveness. I do not f=
eel
>happy writing anything against a fellow Indian but somebody has to tell th=
e
>facts.
>Daya ShankerAt 01:38 AM 14/04/2008, Pranesh Prakash wrote:
>
>Dear Mr. Shanker,
>I understand why you may have misgivings about our invitation of Mr. Bashe=
er,
>but I believe your misgivings are unnecessary on two grounds: that our
>conference is meant to be inclusive; and that the wrongdoing you assert on=
Mr.
>Basheer's part is not a given.
>Firstly, the objective of this symposium is not to push forward a particul=
ar
>agendum, whether pro-pharma, anti-pharma, pro-IP or anti-IP, but to have
>broad-based discussions on the various sorts of changes and challenges tha=
t
>India's current patent regime is facing. While this might involve coming t=
o a
>consensus as to solutions (and that would be welcomed), in our pragmatism =
we
>understand that a consensus might not be arrived at, and are ready to face
>that. The important thing is to explore issues, and all possible ways of
>addressing those issues. The benefits of one approach over another is not
>something that we wish to push during this symposium. This, I believe, is
>reflected by the wide variety of views and opinions that the speakers
>represent. Thus, simply put, Mr. Basheer's "close association" with the
>pharmaceutical industry does not hamper his participation in this symposiu=
m.
>In fact, to get a variety of views, such a association (if it did indeed
>exist) would even be preferable. The pharmaceutical industry is after all =
a
>stakeholder, just as the poverty-stricken medicine-less patient is a
>stakeholder. The relative weights of their stakeholding (and the issue of
>India being socialist) is not something I wish to get into here.
>Secondly, Mr. Basheer's "close association" with the pharmaceutical indust=
ry
>is not a given. As he has pointed out (and Chan Park has agreed), his repo=
rt,
>part of which was copied without the necessary acknowledgement, by the
>Mashelkar Committee, was based on solid research and was substantiated. Wh=
ile
>we may disagree with the conclusions that he arrived at, the fact that it =
was
>well-argued is not, I believe, at dispute. The dispute is based on the
>questionable assumption that the source of funding of his research directl=
y or
>indirectly affected his views and biased his conclusions. There is nothing=
to
>support that assumption, especially given that he has held those views eve=
n
>outside of that report. Funding of research and "mercenerisation" of rese=
arch
>are different, and I see no evidence to Mr. Basheer's research being the
>latter. In any case, even Mr. Chan accepts that. Additionally, in case o=
f
>doubt, I believe that he ought be given the benefit of the same. I hope y=
ou
>agree. Please note that these are my personal views, and not that of the
>organising committee. Finally, I must thank you for taking enough interes=
t in
>the Symposium to respond!
>Regards,
>Pranesh
>On 4/11/08, Daya Shanker < daya.shanker@deakin.edu.au[1]> wrote:
>
>Dear Pranesh
>It appears to be a very nice group of people but I do not see why Shamnad
>Basheer should be there. Didn't we discuss his role during the Karnataka H=
igh
>Court's decision in Novartis and his close association with the pharmaceut=
ical
>industry? If a research output is based on the payment made by the industr=
y,
>it destroys total sense of ethics and morality and definitely academic nat=
ure
>of the conference unless it is to provide legitimacy to such research. I h=
ave
>nothing personal against him or anybody but any mercenerisation of researc=
h
>destroys the total fabric of academic morality.
>
>
>
>daya shankerAAt 07:07 AM 9/04/2008, Pranesh Prakash wrote:
>
>Dear All,
>National Law School of India Review, the bi-annual journal of the National=
Law
>School, Bangalore is organising the First NLSIR Symposium on the "Challeng=
es
>to India's Patent Regime". The Symposium is being held from 12th 13th =
April
>(Saturday and Sunday) at the NLSIU campus in Nagarbhavi, Bangalore and is
>intended to promote healthy debate and discussion amongst all the stakehol=
ders
>involved.
>The Symposium has been structured to discuss the cutting edge issues relat=
ing
>to the Indian patent regime. Over four sessions, it looks to cover the
>theoretical justifications for patents, India's role as a country which is=
a
>signatory to TRIPS, the contentious issue of pharmaceutical patents and
>finally an analysis of possible judicial attitudes towards patent law and
>legislation in India. The Symposium brings together judges of the Supreme
>Court, patent attorneys from the USA, senior advocates, technical experts,
>ideologues and activists to facilitate constructive discussion of the issu=
es
>set out and the best way forward for India's patent law. Prominent speaker=
s
>include
>Judiciary
>Justice AR Lakshmanan, Chairman Law Commission of India; Justice PP Naolek=
ar,
>Judge Supreme Court of India; Justice Ravindra Bhat, Judge Delhi High Cour=
t;
>Justice DV Shylendra Kumar, Judge Karnataka High Court
>Academics
>Dr. Anil Gupta, IIM Ahmedabad; Shamnad Basheer, Oxford IP Research Centre;
>Srividhya Raghavan, Oklahoma University; T. Ramakrishna, NLSIU; Sudhir
>Krishnaswamy, NLSIU
>Bar
>Feroz Ali Khader, Advocate High Court of Madras; Aditya Sondhi, Advocate
>Karnataka High Court; Vinay Aravind, Poovayya & Poovayya
>Public Interest
>Leena Menghaney, Access Campaign Manager - India, MSF; Mr. Gopa Kumar, CEN=
TAD;
>Dr. Anand Grover, Director, Lawyers' Collective
>For registration, please contact Apurva Rai, +919886208285. For more det=
ails
>visit http://www.nlsir.in/symposium.htm[2] or contact Arghya Sengupta,
>+919886023232.
>Regards,
>Pranesh Prakash
>_______________________________________________ commons-law mailing list
>commons-law@sarai.net[3]
>https://mail.sarai.net/mailman/listinfo/commons-law[4]
>
>_______________________________________________ commons-law mailing list
>commons-law@sarai.net https://mail.sarai.net/mailman/listinfo/commons-law[=
5]
>
>===References:===
> 1. mailto:daya.shanker@deakin.edu.au
> 2. http://www.nlsir.in/symposium.htm
> 3. mailto:commons-law@sarai.net
> 4. https://mail.sarai.net/mailman/listinfo/commons-law
> 5. https://mail.sarai.net/mailman/listinfo/commons-law
>
>_______________________________________________
>Ip-health mailing list
>Ip-health@lists.essential.org
>http://lists.essential.org/mailman/listinfo/ip-health
>
>
>--
>No virus found in this incoming message.
>Checked by AVG.
>Version: 7.5.524 / Virus Database:
>269.22.13/1377 - Release Date: 14/4/2008 09:26
--
[ 1e402d47.jpg of type image/jpeg deleted ]
--