THE MASHELKAR COMMITTEE REPORT AND “INDUSTRY” CAPTURE ALLEGATIONS


I was greeted this morning by a TOI editorial written by a colleague of mine from Oxford, Sudhir Krishnaswamy, who now teaches at the National Law School, Bangalore. I’ve always respected Sudhir as someone who exuded academic rigour—and was therefore surprised at reading an editorial that rested on superficial analysis and touted fancy terms. Even more surprising was the fact that this came after we had exchanged some communications on this theme in the past. Sudhir had emailed asking for a copy of my paper that I submitted to the Mashelkar Committee. I sent this and received a reply from him stating that he disagreed with the conclusions. When I wrote back asking him as to what he specifically disagreed with and why, he didn’t bother to respond. I was disappointed as I hoped to engage him in a discussion on the substantive issues. And then I see this editorial in the press, where, in relation to my paper, he states:

“In either circumstance, we must conclude that research done under these conditions is ‘consultancy’ research which represents the concerns of a particular interest group.”

Had Sudhir patiently read my paper, dug a little deeper and assessed the overall situation with more objective eyes, he might not have jumped to this perverse conclusion that my paper represented “concerns of a particular interest group”.

1. Firstly, it was not commissioned by Interpat but by the IPI (Intellectual Property Institute). I had nothing to do with Interpat or where the funding came from—it was the IPI that was commissioning this and my dealings were with the IPI.

2. IPI has a number of members, including Interpat, and being a non profit body, isn’t it reasonable that it’s funding come from its member/members? IPI has on its board my supervisor at Oxford, Professor David Vaver, as also Sir Hugh Laddie, two very well known and respected academics/judges in the UK. Sir Laddie was also, till recently, a patent judge and a very respected one at that. The IPI’s council members include academic stalwarts such as Professor John Adams, Professor Lionel Bently, Professor Michael Blakeney, Professor Gerald Dworkin, Professor James Lahore and Professor Hector MacQueen. It also includes reputed judges such as the The Rt Hon Lord Justice Jacob (President), The Hon Mr Justice Kitchin and The Hon Mr Justice Pumfrey. These are very well reputed academics and judges, who are certainly not in the “pay” of industry. All of this information is available on the IPI website. To therefore call the IPI an industry mouthpiece (or an “industry” that is capable of “capturing”) is perverse and smacks of ignorance and sheer laziness in investigating the matter deeper and assessing the situation with more open and objective eyes.

I don’t blame public health activists for jumping to these sort of conclusions, since they have had a very difficult fight and it is only more recently that their voices are beginning to be heard in India. One is more likely to pardon their resort to rhetoric in accord to accomplish their goals in a setting that has thus far, not been very favourable to their cause. However, it is not becoming of an academic to be prone to such a tendency. Perhaps for an academic who feels left out of the whole debate, this stems out of a desperate need to make his/her voice felt in some way. Except that he/she would have gained far more credibility and made more sense, had he/she taken the pains to probe a little deeper.

3. The IPI was interested in going international with their research activities and in particular, on focussing on India and China. Professor David Vaver referred them to me, when they queried him on an “Indian” expert that could objectively analyse the questions posed to the Committee. I was more than happy to do this, particularly since there were no strings attached and no “gag” clauses–that would prevent all my hard work from being submitted to the Committee, if they weren’t happy with the results. It was also understood that I would be the author of this paper, completely independent and free to come to the conclusions that I thought were right. Our agreement was that they (the IPI) would only endorse my paper, if Professor David Vaver, who was the head of the Oxford IP Research Center, thought that the paper was sound in its reasoning/analysis/conclusions. He did so, and the IPI was happy to endorse my findings and send the paper to the Committee.

4. They were also very transparent in their dealings with me and informed me about the Interpat funding and we agreed that this had to be mentioned in the paper.

5. Incidentally, I did another paper for the IPI on the tricky issue of Article 39.3 and regulatory data protection, where again, they wanted an independent Indian expert to assess the standard for protection under Art 39.3 and to assess whether Indian law was complaint with such a standard. I found that Article 39.3 did not require “data exclusivity”–rather, its minimum standard was one of “compensatory liability”–where the data would be “compulsory licensed” and could be relied upon by an Indian generic, provided a reasonable royalty was paid. Those following the Thai compulsory licensing controversy will appreciate that if there is one term that makes big pharma squirm, it is “compulsory licensing”.

Guess what—-this report, again funded by Interpat and advocating that horrible term “compulsory licensing” was submitted to a government committee by the IPI (despite the fact that funding came to IPI from Interpat). Certainly not the kind of reaction one would expect from a body “captured” by industry interests.

Interestingly, over dinner at a New Delhi restaurant last year, I had appraised Sudhir of this second report on Article 39.3 and how this was neither favourable to big pharma (who didn’t like the term “compulsory licensing”) nor the generics or public health activists (who wanted to continue with the status quo and not have to pay royalties for reliance on this data). And that strangely enough, I was in a no-man’s land—some might say, precisely the spot for academics who aren’t exactly “captured” by interests.

Even apart from all of this, lets look at this whole controversy logically. Friends of mine say that I’m stupid to keep insisting on “logic” when what sells today is “rhetoric”. I will credit the Indian public with more intelligence than swaying blindly to rhetoric. Were I an academic “captured” by “industry”:

i) I wouldn’t have insisted on an Interpat attribution in my paper. No one would have had a clue and this entire controversy would never have erupted. After all the IPI is funded by all/most of its members and who would know? I think the IPI would have strongly objected to this non-attribution, but then IPI is also supposedly an “industry” captured body, right?

ii) I wouldn’t have been foolish enough to put that stuff out on my blog, stating that the Committee lifted its conclusions from my report. I, and more importantly, the IPI and Interpat would have rejoiced secretly at having achieved this coup, without anyone knowing any better.

iii) I wouldn’t have gone around critiquing a committee that I thought was favourable to the industry interests that I represent. See my first blog post on the Committee Report, where I note:

“What worried me, however, is that while it took me about 35 pages to come to the conclusion that keeping non NCEs or incremental pharmaceutical inventions outside the scope of patentability would contravene Article 27 of TRIPS, the Committee disposed of this issue in a couple of paragraphs.
….I’m not entirely sure that the issue is a simple one. Would non NCE substances or incremental pharmaceutical advances amount to “inventions” under Article 27, which mandates that “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”.

A recent article by Mr Dinesh Abrol, a public health advocate and a co-convenor of the National Working Group on Patent Laws makes the same point:

Interestingly, Shamnad Basheer himself states: “The key failing of the Committee is not engaging with the tough policy issues. The conclusions may be correct, but there is much to be said for the manner in which they were arrived at.”

Were I captured by “industry”, why would I question the fact that the Committee didn’t reason out its conclusions? Shouldn’t I be happy that my so called consultancy “client” got what it wanted i.e. a finding that the proposed amendments were not TRIPS compatible.

And this brings me to the larger issue of how the debates around this controversy (and the larger public health vs patent controversy) are getting increasingly polarised and are slowly forcing us towards a George Bush kind of view:

“EITHER YOU’RE WITH US OR YOU’RE AGAINST US”

Very famous words in the context of Iraq. But not a very sophisticated approach to life, particularly for an academic. Do academics have to take sides in these debates that are getting increasingly polarised? Particularly so, when they are from India, the land of the Buddha, an evolved spiritual leader, who advocated the “middle path”–an approach that entails being “neutral, upright, and centered. It means to investigate and penetrate the core of life and all things with an upright, unbiased attitude. In order to solve a problem, we should position ourselves on neutral, upright and unbiased ground. We investigate the problem from various angles, analyze the findings, understand the truth thoroughly, and find a reasonable conclusion”.

I would only ask that skeptics take a look at Popping Patented Pills: Europe and a Decade’s Dose of TRIPS. This article co-authored with my supervisor, Professor David Vaver, Director, Oxford IP Research Center, takes a very critical look at big pharma. If that’s not enough, take a look at Taming of the Flu: Working Through the Tamiflu Patents in India. This article takes a critical look at Roche’s stand in not licensing its patents over Tamiflu, despite fears of an acute shortage. It is co-authored with a public health activist, Tahir Amin….someone I find to be very balanced and willing to listen to hard facts/data and reason.

If this is again not enough, take a look at my blog which has posts on the Tamiflu dispute (critiquing Roche’s tough stand on patents) and on the Novartis case (opining that contrary to what Novartis claims, section 3(d) is perfectly compatible with TRIPS). Surely an Interpat paid “captured” academic would never write anything that prejudices the case of one its key members i.e. Novartis.

I read Manoj Mitta’s piece in The Times of India, where he quotes one of the Mashelkar Committee members, Dr Madhav Menon, who also happens to the founder Director of the National Law School of India (where Sudhir now teaches), as stating:

“As an academic, I believe that the committee should be willing to revisit its conclusions in the light of any fresh empirical evidence”

Spoken like a true academic. And this is exactly what we need–a move away from rhetoric and a move towards evidence based research and empirical analysis. And I am glad that at least some sensible academics are now making a call for this. As opposed to others, who may feel left out of the whole debate and resort to fancy terms like “industry capture” to make themselves heard. If there is anything that deserves “moral censure” (again a term used in Sudhir’s article), it is precisely this sort of a publicity stunt that lacks rigorous analysis and is informed less by logic and more by shoddy investigation.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

2 comments.

  1. Avatardwijr

    Like many others …. also following this story/debate …. and come with many similar and equally different perspectives to the issue as raised by Sudhir and responded to by Shamnad. This is in my piece recently published in EPW (details below).

    There is always a problem when implicating intention on an individual when possibly its the institutions that we inhabit that are the problem. To suggest the culpability of an individual or for an individual to claim independence are equally fictions of our time. And, here I am reminded of the classic proverb: ‘Until the history of hunting is written by lions, it will always glorify the hunter’. Each one of us rarely comes to a subject like a ‘clean slate’ …. and the objectivity of standards is our creation of suspect neutrality. None of this is what I address in the EPW piece – for me, the issue of plagiarism and neutrality are the sad reflection of the state of the debate. Shamnad has done his research and come with a view to the issues and interpretations concerning TRIPs. And, that’s what they are ….. a view, an interpretation….. And, in the EPW piece I suggest, albeit too briefly, another view to reading the Canada – Generics Panel Report. Let’s recall that the Panel actually refused to be drawn into defining non-discrimination. Thus, generating a fair degree of legal ambiguity; it’s a sad reflection of the context to interpreting TRIPs that few of us have bothered to grasp this significance of Canada – Generics…. and sought to extract any opportunity in terms of law-making.

    If readers of SpicyIP are keen on fathoming my take on plagiarism and neutrality, then I’d recommend a read of the impregnable texts of Roy Bhaskar, particularly ‘A Realist Theory of Science’ and ‘Scientific Realism and Human Emancipation’. Here’s something to the eager reader http://en.wikipedia.org/wiki/Roy_Bhaskar and an interview http://www.raggedclaws.com/criticalrealism/archive/rbhaskar_rbi.html.

    In Economic & Political Weekly, March 10, 2007:
    Plagiarism is unpardonable, particularly for the Mashelkar Committee, whose report deals with intellectual property. But that is not the only problem. With the report being cited as a credible and authoritative source in the Novartis case in the Chennai High Court, there is greater urgency to critically examine its findings.

    – Dwijen Rangnekar

    For the full article, see: http://www.epw.org.in/showArticles.php?root=2007&leaf=03&filename=11156&filetype=pdf

    Reply
  2. AvatarShamnad Basheer

    Dear Ranjan,

    Thanks for your comment and the link to your article. I’ve responded to the substantive points in your article in a blog posting. Its strange that people in academia and researchers who seek the “truth” often don’t make the effort of digging deeper. Which is why I responded to Sudhir the way I did.

    IP debates (as I’m sure others) are getting increasingly polarised and this is just one example of this. The report wasn’t on public health. it wasn’t on policy. it was a straightforward one dealing with a highly legal/technical TRIPS interpretative issue. And its funny that something like this is taken out of context to suggest that the moment anyone argues that India might be violating TRIPS in some respect, they are necessarily pro industry. Almost like Bush said in the context of Iraq” either you’re with us or against us”. I’ve written some stuff that is favourable to industry and other stuff that industry hates and publich health groups love—but not because i align with either side–its only reflective of an academic trying to do an objective job. and this entails coming on the side of one party in soem issues and the other in others. but “grey” is not a colour that many like. people prefer black vs white. again, a GW Bush approach!!

    Reply

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