The Economic Times recently carried an op-ed by a ‘Delhi-based lawyer and a member of the National Working Group on Patent Law (NWGPL)’ on the Report of the Technical Expert Group on Patent Laws (TEG) also known as the Mashelkar Committee Report which was recently accepted by the government.
The basic aim of this Op-Ed is to discuss how the Mashelkar Committee Report had allegedly created a controversy by allegedly mis-quoting a report by Professor Carlos Correa.
SpicyIP had extensively commented on this entire Correa controversy earlier over here.
What I find surprising with this report is that the Economic Times has published an article based on a report by the Business Standard which in itself was based on an email sent to it by Professor Carlos Correa from Argentina complaining that the Mashelkar Committee Report had mis-interpreted his report that was submitted to South-Centre. Sounds a little incredible?
So lets get down to the main issues with this op-ed.
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How is the author so confident as to what exactly Prof Correa actually dis-agreed with the TEG Report? It is possible that the BS Report may have, by mistake, selectively quoted the email sent by Prof. Correa? Journalists often make such mistakes. Did the author of the op-ed have access to the email sent by Prof. Correa? Did he interview Prof. Correa or did he prefer to base his entire op-ed on hearsay evidence?
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I completely fail to understand the subtle distinction that the op-ed tries to create between ‘exclusion’ and ‘limiting’. The op-ed claims that the issues before the Prof. Correa report and the TEG were different. It claims that while the issue before the former was whether it was possible to exclude essential medicines from patent protection, the issue before the latter was whether it was possible to place ‘limits’ on pharmaceutical patents? I completely and totally dis-agree with this interpretation.
I reproduce the first terms of reference before the TEG below:
(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?
As is obvious from above the TEG was asked to examine whether or not India could limit the grant of pharmaceutical patents to only new chemical entities and new medical entities by excluding patent protection to any kind of incremental innovation. How exactly does anybody answer the above TOR without deciding whether or not it is possible to exclude all kinds of incremental innovations by limiting patent protection to only NCEs and NMEs?
As stated by the op-ed itself “The TEG was never asked to examine whether the exclusion of pharmaceutical inventions from patent protection would be compatible with TRIPS.” Instead the TEG was tasked with determining whether or not it was TRIPs compatible to exclude a certain class of pharmaceutical patents rather than all pharamceutical patents.
As already discussed more than once on this blog, by excluding all kinds of incremental innovations, even those which fulfilled the Art. 27 criteria, any country would automatically exclude an entire class of technology and inventions and this would be in violation of TRIPS. This is what the TEG concluded.
The question of ‘limits’ on pharmaceutical patents have already been dealt with adequately by Section 3(d). This provision basically decides what kind of limits may be placed on incremental innovations.Why would anybody want to try and create an issue about TRIPS compability over here when there is no issue?
3. The assertion of the op-ed that it was possible to interpret Article 27 to allow for a diffrentiation of patentability standard for certain technologies but not discrimination against classes of technologies, is compltely true. There is no disagreement with this assertion – as noted by the op-ed Section 3(d) already does this. However what the op-ed fails to explain is that the basic test, the core thesis of Article 27 cannot be subverted through diffrentiation i.e. if an invention is novel, it contains an inventive step and is capable of industrial application then in that case it will have to be granted a patent. At the most one may diffrentiate the standard of patentability through the creations of certain steps statutory safeguards as has been done in the case of Section 3(d).
4. As for the last recommendation of the op-ed, that the TEG should have explored the options under the Doha Declaration is reptitive since the TEG already went through the Doha Declaration to determine or not the declaration over-rode Article 27. The TEG concluded in the negative. What the op-ed fails in explaining is how it would interpret the Doha declaration to limit the grant of patents to only NCEs and NMEs?
As is obvious from above the ET op-ed had nothing substantial to add to the endless stream of publications already criticizing the TEG Report. To an extent I am reminded of Orwell’s Animal Farm where the continuous bleating of the sheep drowns out any voice of reason. As Orwell’s lead character Napolean points out – ‘repetition of an idea installs in the minds so deeply, that at last it is considered to be the proved truth’.
dear prashant reddy,
its good that u ve referred (hyper-linked) to the post by shamnad on the issue. however it wud ve been even better if u cud ve hyper-linked to a few other posts on the same issues (by shamnad on the mashelkar report n correa), wherein shamnad n me had some interesting discussion (sort of) on some aspects thereof, esp. on correa.
-aditya kant
Congrats for the excellent comments on TEG Report. The interpreation raised by the delhi based lawyer was without any merit and against the accepted pactice of legal interpretations. It looks like the author was not even sure about the refernce of TEG, or he simply misquoted it for his own personel interest. I noted in one of my earlier comments about the same issue the alleged nexus between person working with the Malaysia based NGO and the reporter of Business standards. Now the same person associated with malaysia based NGO wrote the Op-ed by hiding his assocaition with NGO and by misleading people using Delhi based lawyer or member of national working group of patent laws is highly ridiculous and cheap. I request well known financial dailies like Economic Times to desisit from publishing these types of articles, which are planted for the purpose of misleading. The so- called lawyer intention was to protect his BS standard friend and justify the arguments in that report most probably planted by this lawyer himself. Atleast I am happy that, now every body understands the truth and the malicious intention of the lawyer and certain group associated in the name of NGO. I hope this incident will teach them a lesson and understnds them that they can’t fool everytime
Having read the op-ed and the post here, I find it interesting that the op-ed fails to clarify to the author of this post the distinction between “exclusion” and “limiting”. My understanding is that exclusion in this context means whether a particular field of technology like pharmaceuticals can be excluded from patentability? Prof.Correa obviously says no. TEG agrees. However, what the op-ed says is that in the very book by Prof.Correa that has been cited by TEG, Correa goes on to explore how TRIPS flexibilities can be used to limit i.e. restrict the grant of patents to certain types of pharmaceutical substances. So pharmaceutical substances cannot be EXCLUDED as a category, but there can be limits. May be like saying you cant stop vehicles from plying on the road per se, but you can limit the type of vehicles that will ply on the road.
@Aditya Kant – Please do refer me to which post exactly you commented on and I’ll hyper link it to this post.
@Anon 12:04 AM – Thank you for your comments – I have to admit though this controversy is getting really boring. I just hope it dies out soon.
@Anon 4:33 AM – In the context of the Terms of Reference to the TEG I don’t think it is possible to distinguish between the terms ‘exclude’ and ‘limit’. The question was whether it was possible to exclude incremental inventions by limiting patenting to only NCE and NMEs.
We could get into intricate word play here but I don’t think that is going to help anybody.
Prashant
@Prashant: If the words “exclude” and “limit” are to be read in the context of the ToR of TEG, is it not appropriate, that by the same logic of interpretation, TEG should have interpreted the words “exclude” and “limit” in the context in which they were used by Correa in the book, when TEG cites Correa in support of its conclusions? I was merely stating how Correa interpreted these words.
Happy Dussehra
Dear Anon,
Prashant is absolutely right here. This alleged distinction that you are trying to limit and exclude is complete hogwash! I have submitted an editorial to the Economic Times, highlighting this bluff. Will post on this soon.
Dear Anon (who’s raised the conspiracy theory),
can you please be a bit more specific in your allegations of this conspiracy involving BS, Malaysian NGO etc. You are anyway posting as anonymous–so why don’t you share more details?
dear prashant reddy,
sorry for late response, as i was away. as u have asked, here r a few more posts where mashelkar/correa were discussed (not only by me, but by others, too):
Sunday, August 23, 2009
Mashelkar Committee on Patents and Prof Correa: Court(quote)ing a New Controversy?
Monday, August 24, 2009
The “Correa” Controversy: Dump Mashelkar or Dump the Business Standard?
[your current post hyperlinks to only the following post:
Tuesday, August 25, 2009
The Correa Controversy: Clarifying Popular “Mashelkar Myths”]
-aditya kant
@ Prashant
1. There is a kind of logical flaw in argumentation that is called “begging the question”. You ably demonstrate what that means when you state:
“As already discussed more than once on this blog, by excluding all kinds of incremental innovations, even those which fulfilled the Art. 27 criteria, any country would automatically exclude an entire class of technology and inventions and this would be in violation of TRIPS.”.
Let us break that up:
By not allowing X, even if they fulfil Y, you would be violating Y.
The POINT that is being sought to be argued is WHETHER X can be said to not fulfil Y. You are ASSUMING that which you is sought to be PROVEN by stating “even those which fulfilled the Art. 27 criteria”.
Further example:
“If all new borns babies, including those adults who undergo facial surgery, are to be given free education, you shall be giving free education to all those who have face-related surgery.”
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2. Basing something on a newspaper report (which itself is based on an e-mail) is not “hearsay” to be dismissed as evidence in the court of expert opinion that you have set up.
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3. Consider the following:
A:
No pharmaceutical product patents shall be granted on essential medicines;
B:
No pharmaceutical product patents shall be granted to a substance that is not an NME/NCE involving one or more inventive steps.
Imagine a person arguing that you can’t do the latter because the former isn’t allowable under TRIPS. That is exactly what is being done. The former has been referred to as exclusion, while the latter is limitation.
The “intricate word play” is what we are all (including the TEG) engaging in when trying to use tools to interpretation to gauge the meaning of a treaty. Why you would think it is “not going to help anybody” is unclear. Well, perhaps you feel that way because it is in fact going to harm the aam aadmi, and in that I agree.
Dear AC,
If this is the same AC that frequented the blog earlier and took a long sabbatical, welcome back!
Firstly, I guess what Prashant meant when he stated “even those which fulfilled the Art. 27 criteria” is that when you exclude an entire class without examining on the merits, you violate the Article 27 mandate that patents have to be granted to all inventions that are novel, non obvious and useful.
As for your second issue about the dubious “limitation vs exclusion” distinction, I have an article on this very issue that I will post soon.
@Pranesh:
1. I admit that there has been a grammatical mistake in the one sentence that you quote. Shamnad’s comment clarifies that adequately. I guess that takes care of ‘X’ and ‘Y’ and the babies and the facial hair and the right to education.
2. This is a blog not a Court of Expert opinion. If you think we’re experts we will all take that as a compliment. Also I never said that this hearsay evidence was inadmissible. I only raised questions as to the veracity of the report – please read my post again.
I maintain that it is hearsay evidence because the BS never quoted a single sentence from Correa’s email. It merely gives its opinion on the contents of Correa’s email.
3. I once again disagree with this exclusion v. limitation distinction that you have drawn. Point A is an exclusion and so is Point B. If you are not going to grant a patent to any incremental innovation even if it has involved one or more inventive steps then in that case you are straight out excluding an entire class of incremental innovations. This is not a limitation, it is an outright exclusion. A limitation is what Section 3(d)arrives at.
The important question over here is what is your understanding of NCE and subsequent incremental innovations.
As for the ‘intricate word play’ I stick to my stand that it is a non-issue and nothing but a creation of that one ET report. Nobody else has raised the issue.
Prashant
I beleive that Dr. Correa came out with a detailed email yesterday, on one of the IP health List serve, available here:
http://lists.essential.org/pipermail/ip-health/2009-October/014311.html
Dr. Correa’s comments seem to definitely support the BS summary of Correa’s comment, which quite some commentors/ media folks questioned.
Regards,
Frequently Anon
Other people (Prof. Brook Baker of the Northeastern University School of Law, Program on Human Rights and the Global Economy) raising the issue:
http://tr.im/BlVm
To quote a bit:
In an attempt to justify its third fundamental error, the Mashelkar II Report mischaracterized and misapplies the expert opinion of Professor Carlos Correa. Although it correctly cites that Professor Correa had previously opined that Article 27.1 does not permit the exclusion from patentability of medicines in general as a field of technology nor, arguably, specific sub-groups thereof [for example, WHO essential medicines] (¶ 5.8), it then over-extends that analysis to conclude that non-NCEs are such a “field of technology” and that it would be improper to exclude what it calls new forms of crystals, polymorphs, etc. from patent protection (¶ 5.9). Professor Correa has stated publicly that his quoted text had addressed “a very different question than the TEG was apparently asked to answer. … In my opinion, the approach taken by the TED – to treat the issue as a binary, yes or no situation – overlooks an array of interesting, complicated and critically important issues relevant to the Indian situation.”
If the Committee had read further in Professor Correa’s work, it would have seen in the very text the Committee relied on that Professor Correa had discussed countries’ right to refuse to extend patent rights to common variations of existing chemical entities – what he calls commonly known compounds, such as salts of acids, bases, isomers, homologues, polymorphs and optical isomers. Professor Correa himself suggested that the Committee should have read his later work, Guidelines for the examination of pharmaceutical patents: developing a public health perspective, Working Paper, WHO, ICTSD and UNCTAD, 2006, available at http://www.iprsonline.org/resources/docs/Correa_Patentability%20Guidelines.pdf. (Although he did not address it directly, it is also worth noting that Professor Correa’s discussion of “special overriding situations” that might create an “emergency” exception to normal patentability standards was also misapplied to the Committee’s interpretation of Articles 7 and 8. (¶¶ 5.18-5.22).)