Empty allegations

Shamnad Basheer

Faced with allegations of plagiarism, Dr R A Mashelkar has withdrawn the report of the Committee he was heading. Many critics have alleged that the Committee ‘plagiarised’ key conclusions from a report I wrote. In their attempt to discredit the Committee, they have also called into question my academic 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 certain statements from my blog (spicyipindia.blogspot.com) were drawn upon to support the allegation that the Committee ‘plagiarized’ from my report. This is not correct, as amply borne out by the last sentence in the blog: “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.”

In other words, the Committee did include the key points in my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were only borrowed from my report and not ‘plagiarized’.

The Committees mandate was to address the following issues:

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

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

The key conclusions of the Mashelkar Committee were that these two prospective provisions, if introduced into Indian patent legislation would contravene TRIPS. These conclusions were borrowed from conclusions that I had arrived at whilst doing a report on the same theme titled Limiting the Patentability of Pharmaceutical Inventions and Micro-organisms: A TRIPS Compatibility Review. This report was commissioned by the Intellectual Property Institute (IPI), UK.

This report, funded by Interpat  (an association of multinational pharmaceutical companies) has caused some critics to allege that the Committee report merely reflected an industry agenda. This allegation rests of certain incorrect assumptions: that anything funded by industry has to necessarily represent an industry view, despite the fact that the person commissioned holds himself out as an objective and independent academic. They claim the Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own. Though, its members are distinguished academics and known for their integrity. Most importantly, these kind of ad hominem or personal attacks do not answer the question: is there something 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 ‘invention’ as used under TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. It the 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’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27.

Lastly, as I point out in my blog, although the Committee got it’s conclusions right, their key failing was in not demonstrating how they worked through the TRIPS issues/analysis in their report. And to this end, it is commendable that they retracted the report and offered to resubmit it. I hope everyone uses this “resubmission” 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 substantive issues involved here.

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