
In a damning indictment, a news analysis report in the Hindu by Chan Park and Achal Prabhala alleges that
… a committee of five renowned experts takes a year and a half to deliberate over a patent law issue that is crucial to millions of people in India, and finally produces a report whose key conclusions are borrowed, without acknowledgement, from a paper funded through a U.K.-based think-tank by Interpat, an association of major multinational pharmaceutical companies.
Apparently, the committee was chaired by Dr. R A Mashelkar and consisted of Professors Goverdhan Mehta, Asis Datta, N.R. Madhava Menon, and Moolchand Sharma.
Though the Mashelkar report is available for download (doc), I do not have access to the paper — Limiting the Patentability of Pharmaceutical Inventions and Micro-organisms: A TRIPS Compatibility Review” — from which the the report supposedly borrows its conclusions. Hence, I am not able to comment on the plagiarism issue. However, from this blogpost by the author of the paper, it looks like the committee might have had access to the paper; and, to my knowledge the paper is not referred to in the report — a search for the name of the author of the paper Shamnad Basheer did not return me any results.
However serious the plagiarism and conflict of interest accusations may by themselves be, the more pressing concerns are about what the article calls “evergreening”:
Patents are limited monopolies granted by national governments and, on the insistence of the corporate lobby, regulated by multilateral institutions like the World Trade Organisation. In theory, the logic is deceptively straightforward: the discovery of new medicines costs money; companies need an incentive to make this investment; patents provide that protection. In practice, there is a big problem. Multinational pharmaceutical companies have turned the system on its head. As their pipeline of truly new and innovative drugs slows to a trickle, they have chosen to focus their energies on patenting minor tweaks to existing drugs in order to squeeze out an ever-extending monopoly whenever possible. In trade circles, this is called “evergreening” — a process that the Mashelkar Report asks us not to confuse with “incremental innovation” although, honestly, it is hard to tell them apart. This translates into an infinite monopoly — instead of merely a 20 year one — a lifetime of artificially high prices for essential medicines because only one manufacturer is allowed to supply the market.
Personally, as a matter of principle, I abhor IPR, patents, and copyright; however, if we are forced to follow the IPR/patents/copyright regime, it might be in our interests to use the wiggle room available to the maximum extent possible:
When India amended its patent law in 2005, it included some unique provisions to ensure that pharmaceutical companies could not “evergreen” with impunity. It stipulated that if a pharmaceutical company wanted a patent for an improvement on an already existing drug, it must show that the improvement actually made the drug more effective. However logical this may seem to us, it is clearly not in the interests of the multinational corporate lobby — although the fact remains that India should have set patent standards even higher, since TRIPS explicitly leaves this flexibility in sovereign hands.
Let us hope that the ensuing discussion will lead us to such flexible laws with enough wiggle room not to compromise our interests. In particular, let us hope that this article will elicit some response from the committee defending itself against the allegations and explain the logic behind its recommendations.
February 12, 2007 at 5:46 am
Guru:
I can understand why this “evergreening” can be a issue. However, I do understand how we can be against IP and Copyright and expect innovation to occur.
Incentives matter.
Cheers,
Suhit
February 12, 2007 at 7:24 am
Dear Suhit,
I agree that incentives matter; however, IP and copyright tie the incentive to monetary gains alone. On the other hand, think of the open source movement, where, as long as credit is given where it is due, innovations keep occuring.So, probably, it is time for us to think of incentives which are different from those in the IP/copyright model.
Guru
February 12, 2007 at 12:57 pm
[...] at Mutiny.in, Guru has collected a bunch of relevant [...]
February 12, 2007 at 1:03 pm
Guru: Chan and Prabhala also have another op-ed in today’s Times of India! The content is much the same. Unlike their Hindu op-ed, they use the dreaded ‘P’ word in the ToI op-ed.
This article by Chan has some material that would help understand better the issues related to TRIPS and the kinds of ‘flexibility’ that are allowed by it.
February 12, 2007 at 2:28 pm
Guru,
I am not able to comment in the plagiarism issue for now, but please understand, pharmaceutical business is not the same as writing software.I mean no disrespect to code writers but the dynamics are plainly different. It cost a whole lot of money, and that money must be recovered. Ever-greening is certainly an issue but to say patents itself are bad is plain wrong. You can’t expect drug companies to invest huge amount of money merely for due credit.
February 12, 2007 at 2:37 pm
Oh, one more link. The Truth about Drug Companies by Marcia Angell, ex-Editor-in-Chief of the New England Journal of Medicine.
February 12, 2007 at 2:56 pm
Dear Abi,
Thanks for the TOI Op-Ed link. I can see why Hindu would like to be careful about using the plagiarism allegation — that would mean quoting the relevant passages from both, thus giving a reasonably good evidence for a neutral reader — but, in the absence of access to the other paper (which costs 35 pounds), it indeed is difficult to say.
However, I found the following interesting: the report lists the submissions that the committee received, and they are by no means unanimous. While some of the pharmaceutical companies (Ranbaxy, Lex Orbis ) and attorneys (Krishna and Saurastri)seem to agree that the proposed restrictions are not TRIPS compatible, others (V R Krishna Iyer, BIOCON, Indian Drug manufacturers’ association) seem to think that such restrictions are TRIPS compatible. So, if there is some room for maneuverability, why not use it (especially since it would mean cheaper medicines)?
The report also says:
I found this argument specious — if incremental inventions are allowed to be patented, Indian industry might be using that provision. However, that does not mean that that is all they are good for. In fact, not allowing incremental inventions might actually help strengthen the Industry by forcing it to be more inventive.
As an interesting aside, of the 339 patents listed in the annexure IV as PCT applications filed by Indians (most of which, the report claims to be incremental inventions), 95 have been filed by Ranbaxy; of the 85 applications listed Brazilian applications (Annexure V), 59 have been filed by Ranbaxy — so, it is no wonder that they think such exclusion to be TRIPS incompatible.
February 12, 2007 at 3:27 pm
Dear Confused,
I agree that software and pharmaceutical business are different in nature. However, to say that pharmaceutical industry is making huge investments in drug research might itself be a myth; the link that Abi gives, for example, says this:
Also, as you yourself mention, the pharmaceutical industry is in the business to make money. If the patents are not allowed, they will compete among themselves and concentrate their research in making their medicines more affordable. I do not think they are going to say “Oh, we can no longer have monopoly in making the medicines — so, let us close shop and get into some other business”.
February 12, 2007 at 7:18 pm
Guru,
Marcia Angell’s article in hardly the last word as far the pharmaceutical industry is concerned. There is little doubt that some of her points are valid and Pharmaceutical companies are always trying to push minor improvements as new drugs. But her opposition is more ideological ( her rant against Professors making money) and she has failed to examine many other issues which are responsible for the rising cost of drugs-usage for one.
See this review of her book.
http://www.newyorker.com/critics/atlarge/articles/041025crat_atlarge?041025crat_atlarge
February 12, 2007 at 7:49 pm
If the patents are not allowed, they will compete among themselves and concentrate their research in making their medicines more affordable.
Guru, the problem is that above a certain extent, they cannot do that, because then they simply would not get the revenue needed to keep drugs flowing in the pipeline. I do agree that it’s a dilemma, but scientifically, it really takes a gargantuan effort and time to discover new drugs, and we cannot expect pharma to lower drug prices so much that they will be affordable to the poorest of the poor.
February 12, 2007 at 9:24 pm
Actually whether patents are desirable or not is one thing. In an ideal world they are probably not desirable or needed.
The main question is: people won’t make it unless they can patent it. Everyone wants to make pots of money. Human nature is such.
February 12, 2007 at 10:16 pm
See few related links:
http://www.iht.com/articles/2007/01/29/business/novartis.php
http://mondediplo.com/2006/05/16bigpharma
http://www.iht.com/bin/print_ipub.php?file=/articles/2006/03/12/business/web.0312berenson.php
I heard that Michael Moore is making a movie on this issue!
However, I should mention that Indian pharma companies are not saints. They are also greedy and do all sort of dirty work to get the drug marketed.
February 12, 2007 at 10:40 pm
Confused: Though I agree that there are other issues that Angell fails to address, the fact remains that the pharma industry is making huge investments in the drug research is still a myth. Even the article that you link seem to agree on that.
Ashutosh: I am not so sure about the gargantuan effort pushing the drug prices high part — unless you throw the market open, you never know how the pricing might be. I recently read in one of the economics blogs about underpants which are sold for less than a dollar in Walmart! And, mind you — I am not asking the pharma industry to lower their price so that the poor can afford medication — to make sure that they can afford medication is the responsibility of the government. All I am saying is that there should be no monopoly. Once there are several players in the field, let the market decide the price.
Nita: That is precisely my point. Let them not patent it and then let us see how many of them make it. The ones who are after pots of money would go elsewhere, or, probably they wont!
February 13, 2007 at 5:42 am
This is freakin’ funny when I hear people say that patents are necessary for innovations. In fact, the whole scientific world progressed without any requirement for patents. Extreme capitalists use patents as a cover for their desperation to make money out of every damn thing. It is a shame that some people in the scientific community fall for it. The real scientists never needed patents to innovate.
February 13, 2007 at 6:15 am
Pradeep: Thanks for the links. Surprisingly, today I found that Novartis is going open source on their human genome data!
Krish: I agree; if the present model seems to tie patents and monetary benefits to innovation, it is probably time we looked at a different model.
February 13, 2007 at 7:34 am
Guru, here is a nice article by two economic professors who call claims like “Pharma industry needs patents for innovation”, a big bluff. They cite the example of Italy
http://www.dklevine.com/papers/ip.ch.9.m1004.pdf
February 13, 2007 at 7:44 am
Also where does this tamasha of patents end. A pharma company designs a drug by spending millions of dollars and they claim that they need to patent it to protect their investment. Well, for anyone with basic knowledge about scientific research, it is obvious that they could design the drug by spending millions of dollars ONLY due to generations of work by other scientists. There is no way these companies could have designed these drugs without the previous work of scientists. How are they going to benefit materially? If Pharma companies patent the drug and make money, then those scientists will be the losers. So you gotto make the benefits flow backwards then. If you agree to make the benefits go backwards, where will it stop? it cannot stop. Any real scientist will know that every discovery is either directly or indirectly correlated to previous discoveries. So the backward flow has to go beyond Newtonian era. This makes the whole patent process comical. So it is better to get rid of the concept of patents altogether and call the bluff of those extreme capitalists who use the innovation claim to cover their greed. I wonder how some people in academia even fall for such stupidity. They are just misfits in the great academic community.
February 13, 2007 at 8:56 am
Dear Krish
Thanks for the link; the article looks nice (though it is going to take a while for me finish reading it).
I agree with you on the patents issue; as I mention in my post, I abhor the concept — it might have served some useful purpose in the past; however, in this day and age, I think we might be able to come up with better models. After all, patenting is a nearly 500 year old concept!
February 14, 2007 at 7:47 am
[...] Edition 2 Posted by Guru under Law , Science and Technology , Nation My earlier post on the Mashelkar committee report garnered lots of interest, and the ensuing discussion has raised many issues, noted several aspects [...]
February 14, 2007 at 9:53 am
Mashelkar committee report is a hot discussion issue in India now. It completely supported the pharma companies and not taken the concerns of common man and access to medicine. The author of the particular article told me one year back (2005) when I met him in the University of Illinois, that he is working on this particular report. There is high probability that the report taken the conclusions from his report.
February 14, 2007 at 7:51 pm
[...] are the editions 1 and 2 of To patent… [...]
February 14, 2007 at 8:24 pm
No one wants Patens, Its just as many have said here, is to make money.
I believe that no patents be allowed, and drugs should be marketed like any other commodity and as many player foray into the market, the market itself decides the prices.
Take for note the Cellular connectivity business in India, the moment more plares are allowed, every one wooed customer, by lowering their player, while being in a certain regulatory authority’s guidelines – TRAI, which decides, how the standards are to be maintained, and also regulates prices.
Similarily, a corresponding authority should be made for the pharma industry, which gives the technology to companies wanting to manufacture a certain drug. They then also ask them to contro their prices (Within a certain range), and also ask them to comply with some standards of manufacturing it. It can also forbid them from giving away the technology to other players, else they shall be at loss.
Companies can also buy licenses of technology use, to manufacture certain drugs, which else would have been patented.
A part of that money goes to the company that invented that technology, and they would gain every time some one wants to use their technology.
These are just my ides, hope the concerned in the Govt listens to me..
February 15, 2007 at 6:47 pm
It would have been nice had you posted the acknowledgement of Chan and Achal to the person who actually gave them this whole set of information re plagiarism.
February 16, 2007 at 3:39 am
Dear Anonymous,
I saw an acknowledgement to Rajesh Sagar in their Hindu article. However, they do not specifically thank him for the information on plagiarism. Is there some information that I am missing?
Guru
February 22, 2007 at 11:46 am
[...] by the Mashelkar committee of its report. Here are the earlier posts in this blog on the issue: post 1, post 2, and post [...]
February 28, 2007 at 9:03 am
[...] on Indian patent laws has raised much controversy. Apart from being anti-national, it has been accused of plagiarism as some lines were lifted ad verbatim from a report by Shamnad Basheer. Whether inadvertent or [...]
February 28, 2007 at 9:05 am
[...] on Indian patent laws has raised much controversy. Apart from being anti-national, it has been accused of plagiarism as some lines were lifted ad verbatim from a report by Shamnad Basheer. Whether inadvertent or [...]
February 28, 2007 at 2:26 pm
An executive summary of basheer’s paper which was prepared for intellectual property institue (IPI) UK is part of the annexures of the Mashelkar Report. The sentences which are copied verbatim are included in the submissions of intellectual property institute which is part of the annexures of mashelkar report.
February 28, 2007 at 2:36 pm
For a full copy of the IPI/Basheer submission, visit
http://www.altlawforum.org/ADVOCACY_CAMPAIGNS/mashelkar/
March 16, 2007 at 2:17 am
[...] Remember — Mashelkar committee report was about TRIPS compliance. [...]
March 27, 2007 at 5:51 am
Cool! kabababrubarta
December 15, 2007 at 6:33 pm
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