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.
- 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?
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'.