[Ip-health] Pharmabiz: Carlos Correa accuses Mashelkar for misinterpreting his quotes in revised report

[Thiru Balasubramaniam]

http://www.pharmabiz.com/article/detnews.asp?articleid=52090&sectionid=44

Carlos Correa accuses Mashelkar for misinterpreting his quotes in
revised report

Monday, October 12, 2009 08:00 IST
Ramesh Shankar, Mumbai

The world renowned patent expert Carlos Correa, whose views have been
widely quoted by the Mashelkar Committee to support its conclusions in
the revised report, has come out in the open and complained that some
of the quotes from his published article titled "Integrating Public
Health Concerns into Patent Legislation in Developing Countries" have
been misinterpreted by the Mashelkar Committee.

This is for the first time since the issue courted controversy some
time back that the internationally famous patent expert has come out
in the open to criticise the Mashelkar Committee for misinterpreting
his quotes to establish its conclusions in the revised report that
under the WTO's TRIPS agreement, India will not have the right to
limit the granting of patents for pharmaceutical substances to
strictly new medicines.

"TEG (technical expert group headed by Dr RA Mashelkar) refers to was
in the context of whether it would be TRIPS-compliant for some
countries to continue to exclude all pharmaceutical inventions
altogether or a set of them, such as essential medicines. I concluded
that it would not be compatible for countries that did not recognize
product patent protection for pharmaceuticals, such as India, to
continue to exclude them once the TRIPS agreement was fully
implemented in these countries," Correa said.

"This, of course, is a very different question than the TEG was
apparently asked to answer. To my understanding, the relevant question
before the TEG was: 'Whether it would be TRIPS compatible to limit the
grant of patent for pharmaceutical substance to new chemical entity or
to new medical entity involving one or more inventive steps.' This is
a completely different question from whether it would be TRIPS
compliant to exclude pharmaceutical products from patentability
altogether," he said.

The government had set up a technical expert group (TEG) with Dr R A
Mashelkar as its chairman and four other members, on April 5, 2005 on
the twin issues of 'evergreening of patents' and 'excluding micro-
organism from patentability'. It submitted the report to the
government on December 29, 2006. There was strong criticism of the
report by public interest groups and others on the ground that
important parts of it were plagiarized from a submission before the
TEG by the representatives of MNCs. The criticism was so strong that
Dr Mashelkar resigned as chairman. However, the government persuaded
him to re-examine the issues and submit a revised report.

The TEG had recently submitted its revised report to the government
and the government accepted the report. But, the redrafted report has
also run into rough weather due to the disclosures by Carlos Correa.

"In my opinion, the approach taken by the TEG - to treat the issue as
a binary, yes or no situation - overlooks an array of interesting,
complicated and critically important issues relevant especially to the
Indian situation. A significant portion of my scholarship since (and
including) the 2000 South Centre paper that the TEG quotes, has been
dedicated to the many options available to developing countries under
the TRIPS agreement to limit the grant of a large number of
'secondary' patents that pharmaceutical companies routinely apply for
and use to unduly delay the entry of affordably priced generic
medicines," Correa added.

"The TEG had, in my view, the opportunity to explore the various means
available to India (and other developing countries) to limit the grant
of patents that only cover minor, often trivial developments or uses
of existing pharmaceutical products, and to provide the government
concrete guidance to avoid the proliferation of patents that may
restrict legitimate competition and erode the role of India as a world
supplier of active ingredients and medicines," he concluded.


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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997