Government of India accepts the conclusions of the Mashelkar Committee Report


The IE has recently reported that the Government of India has finally accepted the recommendations of the Technical Expert Group on Patent Law a.k.a. The Mashelkar Committee Report (since Dr. Mashelkar was the head of the Committee). The IE Report quotes the letter from the DIPP as stating that “TEG (Technical Expert Group) has come to the conclusion that it would not be TRIPS compliant to limit the grant of patent for pharmaceutical substance to a new chemical entity or to a new medical entity involving one or more inventive steps. It would also not be TRIPS compliant to exclude micro-organisms from patenting. This view has been accepted by the government”.
A brief summary on the troubled history of the Report
As most of you know the TEG was set up by the Commerce Minister in the year 2005 in response to repeated calls by the Left parties to restrict the scope of patentability of pharmaceutical substances to only ‘new chemical entities’ and ‘new medical entities’. The terms of the reference of the TEG were limited to only the following two questions:
(i) 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; and
(ii) Whether it would be TRIPS compatible to exclude micro-organisms from patenting?
The initial report submitted by the TEG in 2006 had to be withdrawn due to some technical inaccuracies. The Report was then resubmitted in March, 2009 and it is the conclusions of this Report that have been accepted by the Government.
Is it time to apologize to the good doctor?
The technical inaccuracies, as described by Dr. Mashelkar, referred to the fact that a portion of the conclusions of the report were lifted directly from a report submitted by Shamnad to the Intellectual Property Institute, London. To term this ‘technical inaccuracy’ as plagiarism is not entirely accurate since the submissions of the IPI Report which were reproduced by the TEG Report were annexed to the TEG Report itself and properly attributed to the IPI. For a more nuanced perspective on this topic I’ll refer you to Shamnad’s post at the height of the controversy. The second issue which fuelled the controversy was the fact that Shamnad’s Report to the IPI though commissioned by the IPI was partially funded by the INTERPAT, an international consortium of innovator multi-national companies. This fact was disclosed in the very first footnote of the Report. Unfortunately for Mashelkar and Shamnad a couple of newspaper op-eds interpreted this disclosure as an admission that the IPI Report, and by implication the TEG Report itself, was a brief prepared and submitted on behalf of INTERPAT. They failed to understand that the IPI Report though funded by one agency, was in fact commissioned by another neutral body being the IPI – an academic think-tank whose mandate was to ensure academic objectivity in its work. The researcher is therefore accountable to the commissioning body rather than the funding agency. Once again I’ll refer you to Shamnad’s post explaining this rather simple distinction.
The most regrettable feature of this entire episode were the nasty comments targeting Dr. Mashelkar’s integrity and patriotism. Dr. Mashelkar is a man who has climbed out of abysmal poverty to the top most echelons of the scientific community. His contribution to the nation and CSIR in particular are unrivalled. Despite his stellar track record and his enviable achievements, those opposed to the conclusions of the report did not hesitate in questioning his integrity and patriotism for the simple reason that the TEG reproduced the conclusions of the IPI Report. The most distasteful comments were made by the CPI(M). This political party without paying any heed to Dr. Mashelkar’s unending list of contributions to the country, openly stated that the good doctor was nothing but an agent of western interests. The truth of the matter is that the drafting work of the committee was probably outsourced to a sub-group which was probably responsible for the unfortunate incident. Such occurrences are not rare. For example as I pointed out in an earlier post a Standing Committee of Parliament has committed the very same ‘technical inaccuracies’ as the TEG Report. Even more interesting is the fact that this Committee had CPI)(M)s as members. Does this mean that the CPI(M) will condemn them as national embarrassments and suspend them from the party?
The truth behind the entire Mashelkar episode is simple: The TEG’s critics found it difficult to disagree with the reasons backing the conclusions of the report and therefore they took the easy way out and sought to trash the report on the sole charge of ‘plagarism’. As one critic, Ms. Mira Shiva, put it “The public can understand plagiarism better than intricate intellectual property issues”. In this case however even the ‘expert’ critics were hard pressed to present cogent arguments against the conclusions of the report. Neither this piece by the CPI(M) mouthpiece nor these op-eds by Chan Park and Anchal Prabhala nor this piece by Praful Bidwai were able to give a single forceful argument as to why the conclusions of the TEG Report were wrong in law. Some NGOs like CENTAD have attempted to make out a case but their arguments are not the most convincing. Regardless of whether we agree or dis-agree on points of law it is unacceptable that some participants in this debate launch personal attacks against honourable men such as Dr. Mashelkar.
As this excellent post points out there is an unhealthy trend amongst certain leftist circles to label as unpatriotic any view which is not in consonance with the leftist view. This increasing intolerance toward dissent is unhealthy. A debate on the law must proceed not on character of the participants but on the points of law. Hopefully any future criticism of the TEG Report, on this blog or anywhere else, will be limited to the substance of the report and not the authors of the report.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

One comment.

  1. AvatarRohit

    very well written…i agree that criticism must be confined to the substance of the report and the merits or otherwise of the same…unfortunately, it is a sign of our ‘democracy’ that there is no such thing as ‘healthy criticism’ and it is an attitude of ‘either you are with me or against me and if you are against me, then i will stop at no ends to bring you down!!”

    as you very rightly put it, given dr.mashelkar’s stellar reputation and tremendous contributions to the society at large and to india, it is rather unfortunate that certain elements sought to bring him and the report submitted by him down on a premise that it amounted to plagiarism (when in fact the source was mentioned in the footnote itself). also, as mira shiva and several other journalist friends of ours put it, the public would generally be more concerned about reading about mashelkar’s plagiarism than about intricate concepts of intellectual property law..

    in the process, two individuals (one who has already established a towering reputation and the other who is surely but steadily making one for himself) have sought to be brought down by the said elements.

    i am glad that you wrote this article. possibly that may repair some of the damage done to both the aforementioned gentlemen.
    cheers…

    Reply

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