[Ip-health] Re: [Commons-Law] Symposium on the Challenges to India's Patent Regime | NLSIU, Bangalore

[Shamnad Basheer]

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Dear Daya,

This is your second diatribe against me. I let the first one go =E2=80=94as=
 I was
not interested in dignifying your rant with a response. And besides you had
ended your first malicious attack by suggesting that you wanted to =E2=80=
=9Cthrow
up=E2=80=9D. I sincerely hoped that the =E2=80=9Cthrowing up=E2=80=9D would=
 have expelled  the
toxicity and negativity from your system . But I was sadly mistaken. Your
harsh tone in this second round of personal attacks force to respond in thi=
s
manner.

If you claim to be an academic interested in =E2=80=9Cfacts=E2=80=9D, then =
you must go out
and seek them before jumping to conclusions and letting your misplaced
emotions get the better of you. Firstly, the Novartis case was in the Madra=
s
High Court =E2=80=94and not the Karnataka High Court, as you state in your =
post
below. This small mistake does not really impact the outcome of our debate,
but I=E2=80=99ve noticed a series of such mistakes in all your earlier post=
s on the
Mashelkar controversy. See
<http://lists.essential.org/pipermail/ip-health/2007-February/010630.html>
and <http://lists.essential.org/pipermail/ip-health/2007-March/010781.html>=
,
where your rhetorical sermons include inaccuracies such as the fact that I
was based at Rutgers University, that Dr Menon hails from Bhopal etc etc.
All this causes one to think that you are just =E2=80=9Cshoddy=E2=80=9D and=
 do not bother
investigating and getting your facts right.

Secondly, and more importantly, contrary to what you suggest in your
tryingly long winded posts, Mashelkar=E2=80=99s mandate was not to examine =
the TRIPS
compatibility of section 3(d). Rather, it was to examine the TRIPS
compatibility of a provision advocated by the Left Parties (who, as you
know, are part of the ruling coalition in India) that would have completely
excluded patentability for all pharmaceutical derivatives. The difference
between section 3(d) and the proposed amendment that the Left Parties wante=
d
to bring in is this:

Under section 3(d), a derivative of an existing pharmaceutical substance
would merit a patent, if it demonstrated a significant enhancement in
=E2=80=9Cefficacy=E2=80=9D over and above the earlier known pharmaceutical =
substance. Under
the proposed amendment, no =E2=80=9Cderivate=E2=80=9D would gain patent pro=
tection, whether
or not it demonstrated increased efficacy.

I argued in the report (commissioned by the Intellectual Property Institute=
,
UK [IPI] and funded by Interpat) that the proposed amendment is not in
compliance with TRIPS. And I still continue to believe this to be the case,
and have not seen any literature to suggest otherwise. However, I have
always consistently maintained that section 3(d) is compatible with TRIPS. =
I
did so in 2005, much before the Mashelkar Committee was even constituted. I=
f
you=E2=80=99re interested in this =E2=80=9Cfact=E2=80=9D, then see this art=
icle of mine published in
the first issue of the IJLT
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3D764066>. Also, when y=
our
time permits, please see a more recent paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3D1086254>, which
discusses the Novartis case at length and includes a section on TRIPS
compatibility (I have revised this paper since then and am happy to send yo=
u
a copy, if you wish). To this extent, claiming that the TRIPS analysis in m=
y
report influenced the Novartis case is downright stupid and reeks of
ignorance.

Kamal Nath, the commerce minister was opposed to this amendment proposed by
the Left Parties (i.e. to exclude all derivatives from patent protection,
whether or not they demonstrated increased efficacy) and took the easy way
out by suggesting that the issue be referred to a committee. Unfortunately,
rather than asking the really important question of whether or not such an
amendment  would be in national interest, the committee=E2=80=99s mandate w=
as
limited to =E2=80=9CTRIPS compatibility=E2=80=9D. In other words, would suc=
h a proposed
amendment be in compliance with TRIPS? As Graham Dutfield rightly noted
sometime back on this list, this is non sensical and a bit like putting the
cart before the horse. Logically, India ought to have figured out what=E2=
=80=99s
good for her national interest, and then got around to deciding how to fit
this solution within TRIPS. But the government wasn't interested in a
serious debate here=E2=80=94they were opposed to this provision right from =
the start
and all they wanted was to stall the process. And what better way to stall
than to appoint a committee. The irony of course is that of the 5 committee
members selected, none were TRIPS experts. The committee had only two
lawyers (Dr Menon and Dr Sharma), neither of whom were known for their IP
scholarship, much less their expertise on TRIPS. As for the other 3
committee members, including Dr Mashelkar who headed this committee, they
weren=E2=80=99t even lawyers=E2=80=94they were scientists!! And this commit=
tee was charged
with the arduous task of stepping into the shoes of a WTO panel and decidin=
g
whether or not a proposed amendment would violate a highly contentious
international legal instrument! It=E2=80=99s not that we lacked the requisi=
te talent
in India. The country did have fine academics, such as Dr NS Gopalakrishnan=
,
known for their IP and TRIPS expertise. And it=E2=80=99s a shame that they =
weren=E2=80=99t
involved.

Of course, if you lived upto the values of a true academic, you might have
done your homework well and uncovered all of this. As opposed to completely
missing the boat and wrongly assuming that this was about section 3(d). If
you=E2=80=99re now interested in familiarising yourself with the =E2=80=9Cf=
acts=E2=80=9D, I have
detailed most of these arguments in my blog, SpicyIP. See this link
<http://spicyipindia.blogspot.com/search/label/Mashelkar%20Committee%20on%2=
0
Patents > for all posts related to the Mashelkar controversy (if the URL
does not resolve, please cut and paste this on your browser).

Thirdly, if you had the patience to dig deeper, you might have taken a more
nuanced view on this controversy. For one, =E2=80=9Cbias=E2=80=9D has to be=
 judged with
respect to several factors, and not just the funding source. I have
maintained this TRIPS conclusion even outside of this specific report. And =
I
sincerely believe this to be the correct conclusion even today, as I haven=
=E2=80=99t
seen any convincing analysis to the contrary. More importantly, I was
commissioned to do a second report for the IPI (funded by Interpat again)
and this went against the interests of big pharma, as it completely
rubbished the argument that Article 39.3 mandated data exclusivity. If
you=E2=80=99re interested, I have detailed all of these factors that milita=
te
against the notion of =E2=80=9Cbias=E2=80=9D in this specific blog entry he=
re
<http://spicyipindia.blogspot.com/search/label/Mashelkar%20Committee%20on%2=
0
Patents>.

Most of my works  (outside of this report) have attempted to present a
balanced and issue-based perspective on pharma patent issues. And my blog
postings are reflective of this too. Some of my conclusions end up favourin=
g
big pharma and some favour public health activists. And I sincerely believe
that that's a great place for an academic to be in=E2=80=94-i.e. not to be =
seen
taking sides. But perhaps I=E2=80=99m na=C3=AFve and wrong. In a deeply pol=
arised world,
people love to see things only in black or white. Reflective perhaps of
George Bush=E2=80=99s =E2=80=9Ceither you=E2=80=99re with us or against us=
=E2=80=9D attitude. And taking the
middle ground on some of these issues effectively means that you=E2=80=99re
constantly attacked by both camps for not having chosen the =E2=80=9Cright=
=E2=80=9D side.

Of course, this is not to say that industry sponsored research does not com=
e
with its share of problems. Since this controversy, which affected me quite
deeply, I=E2=80=99ve gone through most of the literature on sponsorship bia=
s. I have
to come to appreciate, that even if funding does not =E2=80=9Cfactually=E2=
=80=9D impact
one=E2=80=99s outcome,, there is a strong prima facie presumption that it d=
oes.
Particularly when it relates in some way to pharmaceuticals. I=E2=80=99ve t=
herefore
decided to never accept industry funding again, as I can ill afford to wast=
e
all this valuable time in rebutting this strong presumption by calling upon
folks to dig deeper into the facts. A friend of mine states that, at worst,
he would accuse me of naivete. And I think he is right. When asked by the
Intellectual Property Institute (IPI), a leading IP think tank in the UK if
I was interested in investigating this TRIPS issue, my enthusiasm got the
better of me and blinded me to the fact that industry sponsorship would mar
the sanctity of the findings. After all, I was just beginning to set my foo=
t
in the world of academia and this was only my second commissioned report
(unfortunately, the first report, dealing with the compulsory licensing
regime in India and commissioned by the JPO was never made public. I have
finally got their consent to make this available in a book=E2=80=94which wi=
ll
hopefully be out sometime at the end of this year).

Being a senior academic and claiming to be a fellow Indian, there were far
more constructive ways in which you could have handled this. Yet to chose t=
o
mount deeply vicious attacks against me. Almost suggesting that I should
never again be invited to any conference dealing with patent issues!! In
fact, from your previous participation on this list, I notice that you=E2=
=80=99ve
become something of an expert on personal attacks. You=E2=80=99ve taken sho=
ts at
very respectable IP scholars, including Fred Abbot and Jerome
Reichman--scholars that some of us hold in the highest regard.

I appreciate that some of my comments to you border on the personal too.
However, I hope that list readers (particularly some of my good friends on
this list who=E2=80=99ve been discussing your emails with me) will forgive =
me for
stooping to your level to give you a bit of your own =E2=80=9Cmedicine=E2=
=80=9D
back--perhaps appropriate, given that the controversy we discuss relates to
pharmaceuticals.

You bemoan the fact that =E2=80=9Clife can be quite tough=E2=80=9D. Unfortu=
nately, mounting
personal vitriolic attacks against everyone in sight is not going to make i=
t
better for you. Dig deep into ancient Indian scriptures and you will find
that =E2=80=9Clife=E2=80=9D itself is not problematic or tough=E2=80=94-it =
all depends on how we
=E2=80=9Cperceive=E2=80=9D it. Interestingly, you will also find that your =
name =E2=80=9Cdaya=E2=80=9D means
compassion/kindness=E2=80=94-a very far cry from what your emails make you =
out to
be. Let=E2=80=99s hope that you begin to correct that impression in the day=
s to
come.

Warm wishes,

Shamnad

            From: Daya Shanker <daya.shanker@deakin.edu.au>
                Date: April 15, 2008 10:30:35 AM GMT+05:30
>> To: "Pranesh Prakash" <the.solipsist@gmail.com>, "NLS IP"
>> <nls-ip@googlegroups.com>, "Commons Law" <commons-law@sarai.net>, "Reade=
r
>> List" <reader-list@sarai.net>, ip-health@lists.essential.org,
>> HEALTHGAP@LISTSERV.CRITPATH.ORG
>> Subject: [Ip-health] Re: [Commons-Law] Symposium on the Challenges to In=
dia=C2=92s
>> Patent Regime | NLSIU, Bangalore | April 12 & 13
>>
>>
>> Dear Pranesh
>>
>> I fully understand and in fact appreciate your advocacy for inclusivenes=
s.
>> But
>> do we talk about inclusiveness when we discuss monopolization through
>> patenting and other instruments such as copyrights? How did patenting be=
came
>> 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=
 the
>> TRIPS Agreement part of an outcome of sovereign negotiations? The TRIPS
>> Agreement is not an agreement if you examine it closely. Its interpretat=
ion
>> is
>> not an independent interpretation if you again examine closely. We are
>> witnessing that in the case of Thailand, Brazil, South Africa and even I=
ndia.
>> 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 =
would
>> be wonderful. The last instance of the TRIPS Amendment where each and ev=
ery
>> word and comma and full stop proposed by developing countries was remove=
d and
>> export was added as one of the patenting rights does not appear to be an
>> outcome of inclusiveness.=C2=A0 Some of these issues I have discussed in=
 my paper
>> Access to Medicines, Paragraph 6 of the Doha Declaration on Public Healt=
h,
>> and
>> Developing Countries in International Treaty Negotiations apparently
>> published
>> in the Indian Journal of Law and Technology, National Law School Univers=
ity,
>> Bangalore and as per the information given to me by Thomas the reference=
 is 2
>> INDIAN J. L. & TECH 8 (2006)(since I have not received the hard copy, I
>> cannot
>> say more than this).
>>
>> =C2=A0Isn't the whole issue of patenting monopolization not an outcome o=
f
>> international subjugation and to put it more brutally international slav=
ery?
>> Where does the issue of inclusiveness come into the picture?
>> Coming to Shamnad Basheer, he is not the first person engaged by the Wes=
tern
>> pharmaceutical industry to write their pamphlets. We had Ameer Attaran b=
efore
>> him and in the same University and possibly the same institute. He produ=
ced
>> exactly the same literature. His articles were published in Lancet and J=
AMA
>> (Amir Attaran and Les Gillespie White, Do Patents for Antiretroviral Dru=
gs
>> Constrain Access to AIDS Treatment in Africa, 286 JAMA 1886, 1886-92 (20=
01))
>> and you name the journals with impact factor, he was there. He was appoi=
nted
>> in the Harvard University for the sole purpose of attaching the Harvard =
brand
>> against his name and we were fed his paper as a great research at Harvar=
d
>> 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 wi=
thout
>> some good publications. The paper was a plagiarized version of Les Gille=
spie
>> White financed by the World Intellectual Property Organization. It was n=
ot
>> even the original work of Amir Attaran. Amir Attaran is right now Associ=
ate
>> Professor at Ottawa University along with Daniel Gervais. Writing pamphl=
ets
>> 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
>> people
>> extremely close to pharmaceutical industry. We have Patricia Danzon. She=
 is
>> professor at the Wharton Business School. When she got the job she had j=
ust
>> one book published by the American Enterprise Institute.
>>
>> Did I make my objection regarding Shamnad Basheer clear? Chan Park had d=
one
>> the wonderful work in Novartis case. I happen to know a little more than=
 Chan
>> Park regarding intellectual property law and the politics of internation=
al
>> negotiations. People like Shamnad Basheer, may be very intelligent perso=
n but
>> they do not bring respectability to any institution or any organization.=
 They
>> get some appointments. They get some invitation to the World Bank and th=
e
>> International Monetary Fund but their presence in any conference brings =
more
>> of a disrepute to the conference rather than any inclusiveness. I do not=
 feel
>> happy writing anything against a fellow Indian but somebody has to tell =
the
>> facts.
>>
>> Daya Shanker
>>
>> At 01:38 AM 14/04/2008, Pranesh Prakash wrote:
>>
>> Dear Mr. Shanker,
>>
>> I understand why you may have misgivings about our invitation of Mr. Bas=
heer,
>> 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 partic=
ular
>> 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 t=
hat
>> India's current patent regime is facing. While this might involve coming=
 to a
>> consensus as to solutions (and that would be welcomed), in our pragmatis=
m we
>> understand that a consensus might not be arrived at, and are ready to fa=
ce
>> that. The important thing is to explore issues, and all possible ways of
>> addressing those issues. The benefits of one approach over another is no=
t
>> something that we wish to push during this symposium. This, I believe, i=
s
>> 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 sympos=
ium.
>> 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 al=
l a
>> stakeholder, just as the poverty-stricken medicine-less patient is a
>> stakeholder. The relative weights of their stakeholding (and the issue o=
f
>> India being socialist) is not something I wish to get into here.
>>
>> Secondly, Mr. Basheer's "close association" with the pharmaceutical indu=
stry
>> is not a given. As he has pointed out (and Chan Park has agreed), his re=
port,
>> part of which was copied without the necessary acknowledgement, by the
>> Mashelkar Committee, was based on solid research and was substantiated. =
While
>> we may disagree with the conclusions that he arrived at, the fact that i=
t 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 direc=
tly
>> or
>> indirectly affected his views and biased his conclusions. There is nothi=
ng to
>> support that assumption, especially given that he has held those views e=
ven
>> outside of that report.=C2=A0 Funding of research and "mercenerisation" =
of
>> research
>> are different, and I see no evidence to Mr. Basheer's research being the
>> latter.=C2=A0 In any case, even Mr. Chan accepts that.=C2=A0 Additionall=
y, in case of
>> doubt, I believe that he ought be given the benefit of the same.=C2=A0 I=
 hope you
>> agree.=C2=A0 Please note that these are my personal views, and not that =
of the
>> organising committee.=C2=A0 Finally, I must thank you for taking enough =
interest
>> 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 Shamna=
d
>> Basheer should be there. Didn't we discuss his role during the Karnataka=
 High
>> Court's decision in Novartis and his close association with the
>> pharmaceutical
>> industry? If a research output is based on the payment made by the indus=
try,
>> it destroys total sense of ethics and morality and definitely academic n=
ature
>> of the conference unless it is to provide legitimacy to such research. I=
 have
>> nothing personal against him or anybody but any mercenerisation of resea=
rch
>> destroys the total fabric of academic morality.
>>
>>
>>
>> daya shanker
>>
>> At 07:07 AM 9/04/2008, Pranesh Prakash wrote:
>>
>> Dear All,
>>
>> National Law School of India Review, the bi-annual journal of the Nation=
al
>> Law
>> School, Bangalore is organising the First NLSIR Symposium on the "Challe=
nges
>> to India's Patent Regime". The Symposium is being held from 12th =E2=80=
=93 13th April
>> (Saturday and Sunday) at the NLSIU campus in Nagarbhavi, Bangalore and i=
s
>> intended to promote healthy debate and discussion amongst all the
>> stakeholders
>> involved.
>>
>> The Symposium has been structured to discuss the cutting edge issues rel=
ating
>> 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 an=
d
>> legislation in India. The Symposium brings together judges of the Suprem=
e
>> Court, patent attorneys from the USA, senior advocates, technical expert=
s,
>> ideologues and activists to facilitate constructive discussion of the is=
sues
>> set out and the best way forward for India's patent law. Prominent speak=
ers
>> include =E2=80=93
>> Judiciary
>> Justice AR Lakshmanan, Chairman Law Commission of India; Justice PP Naol=
ekar,
>> Judge Supreme Court of India; Justice Ravindra Bhat, Judge Delhi High Co=
urt;
>> Justice DV Shylendra Kumar, Judge Karnataka High Court
>> Academics
>> Dr. Anil Gupta, IIM Ahmedabad; Shamnad Basheer, Oxford IP Research Centr=
e;
>> 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,
>> CENTAD;
>> Dr. Anand Grover, Director, Lawyers' Collective
>> For registration, please contact Apurva Rai, +919886208285. =C2=A0 For m=
ore
>> details
>> visit =E2=80=93 http://www.nlsir.in/symposium.htm[2] or contact Arghya S=
engupta,
>> +919886023232.
>> Regards,
>> Pranesh Prakash
>>
>> _______________________________________________
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>> http://lists.essential.org/mailman/listinfo/ip-health
>>
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