The Hindu Business Line : `We need to evolve our own set of distinctive intellectual property norms'

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Chennai Feb. 23 A few days ago, the Dr R.A. Mashelkar-headed expert committee on Patent Law decided to withdraw its report. Reason: "Technical inaccuracy and plagiarism."

The committee, set up in April 2005, looked into two issues that arose during Parliamentary debate on the Patents (Amendment) Bill, 2005. The report, submitted in December 2006, tried to reach conclusions on whether it would be compatible with the TRIPS to: a) "limit the grant of patents for pharmaceutical substances to new chemical entities or new medical entities involving one or more inventive steps only," and b) "exclude micro organisms from patenting." For starters, TRIPS refers to World Trade Organisation's Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.

The `plagiarism' angle in the report is that the committee's `conclusion' is said to have `eight to ten lines' taken `verbatim' from a November 2005 paper authored by Mr Shamnad Basheer, titled `Limiting the Patentability of Pharmaceutical Inventions and Micro-organisms: A TRIPS Compatibility Review'. He is currently the Frank H. Marks Visiting Associate Professor of IP (intellectual property) law at the George Washington University, US, where he teaches a course in TRIPS, patents and public health. Mr Basheer is a graduate of the National Law School, Bangalore.

"It flatters one to know that the extraction happened verbatim, though I would have been happier had the Committee cited the source - but perhaps this is too much to ask of a Committee caught in between a political crossfire and a deft stalling exercise," he writes in a recent post on http://spicyipindia.blogspot.com. Business Line interacted with Mr Basheer to know more.

Excerpts from the interview.

On the report

Unfortunately, the current discussions around the Mashelkar Committee report have been riddled with factual inaccuracies and mistaken assumptions. For instance, some say the report states that Section 3(d) of the Patents Act contravenes TRIPS. The Committee's mandate was only to examine the TRIPS compatibility of certain prospective provisions that were sought to be introduced into our patent law and not to examine provisions that already existed in the patent regime.

Section 3(d) dealing with the patentability of `new forms' of existing substances is a section that already exists in our patent regime and in all fairness to the Committee, they never commented on whether or not this provision was in compliance with TRIPS.

Further, some say that the committee was guided by multinational pharmaceutical interests when it arrived at its conclusions. I teach TRIPS and Public Health at GW law school and must say that a finding that the proposed amendments are likely to violate Article 27 of TRIPS is a perfectly sensible interpretation of TRIPS. We need to move away from ad hominem attacks and begin engaging with the substantive arguments involved in this enquiry.

On the plagiarism allegation against the Committee

It is unfortunate that my blog (http://spicyipindia.blogspot.com) has been selectively quoted to support allegations that the Committee `plagiarised' 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.

Merriam Webster defines `plagiarising' as "presenting as new and original an idea or product derived from an existing source".

Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee's observations were borrowed from my report and not `plagiarised'.

On the withdrawal of the report

Although they got their conclusions right, the key failing of the Committee is in not demonstrating how they worked through the TRIPS issues/analysis in their report. And to this end, I think it was very professional of them to retract the report and offer to resubmit it with a fuller analysis.

This will pave the way for a more robust debate on this report and its findings.

On the interest that Indian IP law generates abroad

With a booming economy and a growing emphasis on innovation, Indian IP law is certainly generating considerable interest abroad.

Although we've moved away from an anti-IP rhetoric, we are still finding our feet in terms of what our international position on intellectual property ought to be. A delegate at a conference summed it up best when she queried me recently: why is your country so schizophrenic when it comes to IP policy?

On the one hand, we are being pulled along by our specific interests in public health, biodiversity and traditional knowledge (and our fights with the US/EU over cotton subsidies) to align with countries such as Brazil that are not perceived to be very IP-friendly.

On the other, we are very interested encouraging investment in technology and want to project the right kind of property regime that would incentivise investments in these technology sectors.

I think, more than schizophrenia, this is really a reflection of the fact that we no longer fit comfortably within the antiquated "developed vs. developing" country classification and the kind of IP regimes that ought to go with such a classification i.e. developing countries ought to grant lesser IP protection than developed countries and vice versa. We are a `technologically' proficient developing country and therefore in a class of our own. Several of our domestic industries innovate and compete worldwide and, therefore, desire increased levels of IP protection, a tune that is happily accepted by our "developed" world friends.

At the same time, we have some very specific `domestic' interests such as public health, traditional knowledge, geographical indications, biological diversity and the like, concerns that, when agitated at international fora, make some of the economic superpowers squirm. We need to therefore carve out a separate set of rules that fit our specific socio-economic needs than blindly follow the regimes in the West.

On the missing links in our IP law, and what we are losing out as a consequence

I think we need much more clarity in our law. A lack of clarity in our IP statutes is likely to lead to a tremendous waste of resources in litigation. Besides, a lack of clarity will leave too much discretion in the hands of the patent office/courts, and given this moment in time, when we are struggling with pharmaceuticals patents for the first time ever, we can ill afford a wrong exercise of such discretion. The Mashelkar Committee's call for more guidelines for pharmaceutical/micro-organism patents is very timely and needs to be implemented.

As I mentioned earlier, we are a technologically proficient developing country and we need to evolve our own set of distinctive IP/innovation norms. For one, we clearly need to do more to incentivise innovation than to merely rely on IP regimes. Innovation is not the result of a legal regime alone but depends on a number of other factors such as skilled manpower, availability of capital, entrepreneurship and risk taking culture etc.

We also need to think creatively in terms of alternative innovation mechanisms, as existing IP regimes may suffer some shortcomings. Thus for example, we've found that the existing patent regime and the promise of a 20 year monopoly does not incentivise research into neglected diseases. How do we incentivise our generics to do R&D into neglected diseases as opposed to going after the low hanging fruits that come with reverse engineering and producing generics for the Western market?

I also think we ought to encourage a more inter disciplinary study of IP law and involve economists, sociologists, political scientists to gain a more comprehensive understanding and to enable us to devise a more optimal IP/innovation regime.

On the reforms you foresee are likely

We're likely to see more work done in newer IP areas such as TK (traditional knowledge) and GI (geographical indications), which are close to our hearts. Regulatory data protection will continue to be a controversial topic. The Minister for Science and Technology, Mr Kapil Sibal is proposing a Bayh Dole kind of legislation and this has been generating a lot of interest. Here again, we ought not to blindly copy other regimes but should think in terms of creative/alternative models that suit our specific socio-economic milieu. After all, this is about innovation and creativity. And we need to be creative here too.

It also bears noting that there is a crying need for empirical data in most of these areas to help us evolve an optimal IP regime. Lack of hard facts and empirical data has caused some of these debates to revolve around emotional rants and we need to rid ourselves of this tendency. It is high time that we upped the ante for IP debates and got into a more rigorous analysis of the various policy options before us.