Former director general of the Council of Scientific and Industrial Research (CSIR) R. A. Mashelkar, who chaired the technical experts group (TEG) on patent law constituted by the government, has been dragged into a fresh controversy.
TEG was asked to suggest whether limiting drug patents to only new chemical entities would amount to violation of the Trade-related Aspects of Intellectual Property Rights (TRIPS). The report, submitted in March, concluded that limiting pharmaceutical patents to only new chemical entities wouldn’t be compliant with TRIPS.
Protecting technology: There should be rigorous norms for examining applications from the drugs sector to prevent frivolous patents, says Mashelkar. Abhijit Bhatlekar / Mint
This is, in fact, TEG’s second report. Its first report in 2006 was withdrawn after allegations that parts of it were plagiarised. This time around, the controversy involves a “misinterpreted” reference in the report. Almost six months after the second report was submitted, Argentinian intellectual property law expert Carlos M. Correa claimed that its conclusion was based on his report, prepared in 2000 in a different context.
Correa’s 2000 paper, referred to in the TEG report, had suggested that countries such as India that did not recognize product patent protection for drugs, could not continue to exclude all drugs or even a set of them, such as essential medicines, once the TRIPS agreement was fully implemented.
Groups lobbying against the TEG report allege that it has misinterpreted the Argentinian author to support its views.
While the generic drug lobby and some healthcare groups fear that Mashelkar’s report could prompt grants of frivolous patents in India, there are others who say the genesis of the whole controversy is the overdependence of TEG on outside views on TRIPS in the absence of intellectual property law experts on its panel. TEG had three scientists and two lawyers on its panel.
In an interview on Monday, his first after the controversy erupted, an unfazed Mashelkar said the controversy is uncalled for and it’s all about people’s perception. He also said every effort should be made to prevent granting of frivolous patents. Edited excerpts:
Correa claimed that TEG bases its conclusions on his report. Is it true?
That TEG has not based its conclusions solely on Correa’s report is clear from the fact that even before citing any report or any person, including Correa, TEG begins its analysis and makes conclusions with a categorical statement by interpreting the crucial Article 27 of TRIPS. Under this, limiting of the grant of patents for pharmaceutical substances only to new chemical entities or new medical entities may prima facie amount to excluding a field of technology, even if they satisfy the basic requirements of patentability. We said in the report that “in such a situation, it is possible to hold the provision as not TRIPS-compatible.”