[Commons-Law] Symposium on the Challenges to India's Patent Regime | NLSIU, Bangalore

[Shamnad Basheer]

Dear Daya,

This is your second diatribe against me. I let the
first one go —as I was not interested in dignifying
your rant with a response. And besides you had ended
your first malicious attack by suggesting that you
wanted to “throw up”. I sincerely hoped that the
“throwing up” would have expelled  the toxicity and
negativity from your system . But I was sadly
mistaken. Your harsh tone in this second round of
personal attacks force me to respond in this manner.

If you claim to be an academic interested in “facts”,
then you must go out and seek them before jumping to
conclusions and letting your misplaced emotions get
the better of you. Firstly, the Novartis case was in
the Madras High Court —and not the Karnataka High
Court, as you state in your post below. This small
mistake does not really impact the outcome of our
debate, but I’ve noticed a series of such mistakes in
all your earlier posts on the Mashelkar controversy.
See 
<http://lists.essential.org/pipermail/ip-health/2007-February/010630.html>
 and
<http://lists.essential.org/pipermail/ip-health/2007-March/010781.html>,
where your rhetorical sermons include inaccuracies
such as the fact that I was based at Rutgers
University, that Dr Menon hails from Bhopal etc etc.
All this causes one to think that you are just
“shoddy” and do not bother investigating and getting
your facts right.

Secondly, and more importantly, contrary to what you
suggest in your tryingly long winded posts,
Mashelkar’s mandate was not to examine the TRIPS
compatibility of section 3(d). Rather, it was to
examine the TRIPS compatibility of a provision
advocated by the Left Parties (who, as you know, are
part of the ruling coalition in India) that would have
completely excluded patentability for all
pharmaceutical derivatives. The difference between
section 3(d) and the proposed amendment that the Left
Parties wanted to bring in is this:

Under section 3(d), a derivative of an existing
pharmaceutical substance would merit a patent, if it
demonstrated a significant enhancement in “efficacy”
over and above the earlier known pharmaceutical
substance. Under the proposed amendment, no “derivate”
would gain patent protection, whether or not it
demonstrated increased efficacy. 

I argued in the report (commissioned by the
Intellectual Property Institute, UK [IPI] and funded
by Interpat) that the proposed amendment is not in
compliance with TRIPS. And I still continue to believe
this to be the case, and have not seen any literature
to suggest otherwise. However, I have always
consistently maintained that section 3(d) is
compatible with TRIPS. I did so in 2005, much before
the Mashelkar Committee was even constituted. If
you’re interested in this “fact”, then see this
article of mine published in the first issue of the
IJLT
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=764066>.
Also, when your time permits, please see a more recent
paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1086254>,
which discusses the Novartis case at length and
includes a section on TRIPS compatibility (I have
revised this paper since then and am happy to send you
a copy, if you wish). 

To this extent, claiming that the TRIPS analysis in my
report influenced the Novartis case is downright
stupid and reeks of ignorance.


Kamal Nath, the commerce minister was opposed to this
amendment proposed by the Left Parties (i.e. to
exclude all derivatives from patent protection,
whether or not they demonstrated increased efficacy)
and took the easy way out by suggesting that the issue
be referred to a committee. Unfortunately, rather than
asking the really important question of whether or not
such an amendment  would be in national interest, the
committee’s mandate was limited to “TRIPS
compatibility”. In other words, would such a proposed
amendment be in compliance with TRIPS? As Graham
Dutfield rightly noted sometime back on this list,
this is non sensical and a bit like putting the cart
before the horse. Logically, India ought to have
figured out what’s good for her national interest, and
then got around to deciding how to fit this solution
within TRIPS. But the government wasn't interested in
a serious debate here—they were opposed to this
provision right from the start and all they wanted was
to stall the process. And what better way to stall
than to appoint a committee. 

The irony of course is that of the 5 committee members
selected, none were TRIPS experts. The committee had
only two lawyers (Dr Menon and Dr Sharma), neither of
whom were known for their IP scholarship, much less
their expertise on TRIPS. As for the other 3 committee
members, including Dr Mashelkar who headed this
committee, they weren’t even lawyers—they were
scientists!! And this committee was charged with the
arduous task of stepping into the shoes of a WTO panel
and deciding whether or not a proposed amendment would
violate a highly contentious international legal
instrument! It’s not that we lacked the requisite
talent in India. The country did have fine academics,
such as Dr NS Gopalakrishnan, known for their IP and
TRIPS expertise. And it’s a shame that they weren’t
involved.

Of course, if you lived upto the values of a true
academic, you might have done your homework well and
uncovered all of this. As opposed to completely
missing the boat and wrongly assuming that this was
about section 3(d). If you’re now interested in
familiarising yourself with the “facts”, I have
detailed most of these arguments in my blog, SpicyIP.
See this link
<http://spicyipindia.blogspot.com/search/label/Mashelkar%20Committee%20on%20Patents
> for all posts related to the Mashelkar controversy
(if the URL does not resolve, please cut and paste
this on your browser).

Thirdly, if you had the patience to dig deeper, you
might have taken a more nuanced view on this
controversy. For one, “bias” has to be judged with
respect to several factors, and not just the funding
source. I have maintained this TRIPS conclusion even
outside of this specific report. And I sincerely
believe this to be the correct conclusion even today,
as I haven’t seen any convincing analysis to the
contrary. More importantly, I was commissioned to do a
second report for the IPI (funded by Interpat again)
and this went against the interests of big pharma, as
it completely rubbished the argument that Article 39.3
mandated data exclusivity. If you’re interested, I
have detailed all of these factors that militate
against the notion of “bias” in this specific blog
entry here
<http://spicyipindia.blogspot.com/search/label/Mashelkar%20Committee%20on%20Patents>.

Most of my works  (outside of this report) have
attempted to present a balanced and issue-based
perspective on pharma patent issues. And my blog
postings are reflective of this too. Some of my
conclusions end up favouring big pharma and some
favour public health activists. And I sincerely
believe that that's a great place for an academic to
be in—-i.e. not to be seen taking sides. But perhaps
I’m naïve and wrong. In a deeply polarised world,
people love to see things only in black or white.
Reflective perhaps of George Bush’s “either you’re
with us or against us” attitude. And taking the middle
ground on some of these issues effectively means that
you’re constantly attacked by both camps for not
having chosen the “right” side.


Of course, this is not to say that industry sponsored
research does not come with its share of problems.
Since this controversy, which affected me quite
deeply, I’ve gone through most of the literature on
sponsorship bias. I have to come to appreciate, that
even if funding does not “factually” impact one’s
outcome,, there is a strong prima facie presumption
that it does. Particularly when it relates in some way
to pharmaceuticals. I’ve therefore decided to never
accept industry funding again, as I can ill afford to
waste all this valuable time in rebutting this strong
presumption by calling upon folks to dig deeper into
the facts. 

A friend of mine states that, at worst, he would
accuse me of naivete. And I think he is right. When
asked by the Intellectual Property Institute (IPI), a
leading IP think tank in the UK if I was interested in
investigating this TRIPS issue, my enthusiasm got the
better of me and blinded me to the fact that industry
sponsorship would mar the sanctity of the findings.
After all, I was just beginning to set my foot in the
world of academia and this was only my second
commissioned report  (unfortunately, the first report,
dealing with the compulsory licensing regime in India
and commissioned by the JPO was never made public. I
have finally got their consent to make this available
in a book—which will hopefully be out sometime at the
end of this year).
 

Being a senior academic and claiming to be a fellow
Indian, there were far more constructive ways in which
you could have handled this. Yet to chose to mount
deeply vicious attacks against me. Almost suggesting
that I should never again be invited to any conference
dealing with patent issues!! In fact, from your
previous participation on this list, I notice that
you’ve become something of an expert on personal
attacks. You’ve taken shots at very respectable IP
scholars, including Fred Abbot and Jerome
Reichman--scholars that some of us hold in the highest
regard. 

I appreciate that some of my comments to you border on
the personal too. However, I hope that list readers
(particularly some of my good friends on this list
who’ve been discussing your emails with me) will
forgive me for stooping to your level to give you a
bit of your own “medicine” back--perhaps appropriate,
given that the controversy we discuss relates to
pharmaceuticals.

You bemoan the fact that “life can be quite tough”.
Unfortunately, mounting personal vitriolic attacks
against everyone in sight is not going to make it
better for you. Dig deep into ancient Indian
scriptures and you will find that “life” itself is not
problematic or tough—-it all depends on how we
“perceive” it. Interestingly, you will also find that
your name “daya” means compassion/kindness—-a very far
cry from what your emails make you out to be. Let’s
hope that you begin to correct that impression in the
days to come.

Warm wishes,

Shamnad

  From: Daya Shanker <daya.shanker at deakin.edu.au>
   Date: April 15, 2008 10:30:35 AM GMT+05:30
To: "Pranesh Prakash" <the.solipsist at gmail.com>, "NLS
IP" <nls-ip at googlegroups.com>, "Commons Law"
<commons-law at sarai.net>, "Reader List"
<reader-list at sarai.net>,
ip-health at lists.essential.org,
HEALTHGAP at LISTSERV.CRITPATH.ORG
Subject: [Ip-health] Re: [Commons-Law] Symposium on
the Challenges to India&#146;s Patent Regime | NLSIU,
Bangalore | April 12 & 13

 
Dear Pranesh

I fully understand and in fact appreciate your
advocacy for inclusiveness. But
do we talk about inclusiveness when we discuss
monopolization through
patenting and other instruments such as copyrights?
How did patenting became
an issue in the Indian context? Is it based on the
independent decision
arrived at by sovereign countries in the interest of
their citizens? Was the
TRIPS Agreement part of an outcome of sovereign
negotiations? The TRIPS
Agreement is not an agreement if you examine it
closely. Its interpretation is
not an independent interpretation if you again examine
closely. We are
witnessing that in the case of Thailand, Brazil, South
Africa and even India.
How many countries are free to even interpret
provisions of the TRIPS
Agreement? Try to count them and if you could tell us
their names, that would
be wonderful. The last instance of the TRIPS Amendment
where each and every
word and comma and full stop proposed by developing
countries was removed and
export was added as one of the patenting rights does
not appear to be an
outcome of inclusiveness.  Some of these issues I have
discussed in my paper
Access to Medicines, Paragraph 6 of the Doha
Declaration on Public Health, and
Developing Countries in International Treaty
Negotiations apparently published
in the Indian Journal of Law and Technology, National
Law School University,
Bangalore and as per the information given to me by
Thomas the reference is 2
INDIAN J. L. & TECH 8 (2006)(since I have not received
the hard copy, I cannot
say more than this).

 Isn't the whole issue of patenting monopolization not
an outcome of
international subjugation and to put it more brutally
international slavery?
Where does the issue of inclusiveness come into the
picture?
Coming to Shamnad Basheer, he is not the first person
engaged by the Western
pharmaceutical industry to write their pamphlets. We
had Ameer Attaran before
him and in the same University and possibly the same
institute. He produced
exactly the same literature. His articles were
published in Lancet and JAMA
(Amir Attaran and Les Gillespie White, Do Patents for
Antiretroviral Drugs
Constrain Access to AIDS Treatment in Africa, 286 JAMA
1886, 1886-92 (2001))
and you name the journals with impact factor, he was
there. He was appointed
in the Harvard University for the sole purpose of
attaching the Harvard brand
against his name and we were fed his paper as a great
research at Harvard
University. His salary was paid by Africa fights
Malaria, a conservative
institution financed by Western industry. It was not
that the Harvard
University was ashamed of him. But normally they do
not employ people without
some good publications. The paper was a plagiarized
version of Les Gillespie
White financed by the World Intellectual Property
Organization. It was not
even the original work of Amir Attaran. Amir Attaran
is right now Associate
Professor at Ottawa University along with Daniel
Gervais. Writing pamphlets
does pay. I have recently seen the name of Shamnad
Basheer as visiting
Associate Professor at some American University. As I
mentioned, writing
pamphlet does pay. Life is otherwise quite tough. We
have so many other people
extremely close to pharmaceutical industry. We have
Patricia Danzon. She is
professor at the Wharton Business School. When she got
the job she had just
one book published by the American Enterprise
Institute.

Did I make my objection regarding Shamnad Basheer
clear? Chan Park had done
the wonderful work in Novartis case. I happen to know
a little more than Chan
Park regarding intellectual property law and the
politics of international
negotiations. People like Shamnad Basheer, may be very
intelligent person but
they do not bring respectability to any institution or
any organization. They
get some appointments. They get some invitation to the
World Bank and the
International Monetary Fund but their presence in any
conference brings more
of a disrepute to the conference rather than any
inclusiveness. I do not feel
happy writing anything against a fellow Indian but
somebody has to tell the
facts.

Daya Shanker

At 01:38 AM 14/04/2008, Pranesh Prakash wrote:

Dear Mr. Shanker,

I understand why you may have misgivings about our
invitation of Mr. Basheer,
but I believe your misgivings are unnecessary on two
grounds: that our
conference is meant to be inclusive; and that the
wrongdoing you assert on Mr.
Basheer's part is not a given.

Firstly, the objective of this symposium is not to
push forward a particular
agendum, whether pro-pharma, anti-pharma, pro-IP or
anti-IP, but to have
broad-based discussions on the various sorts of
changes and challenges that
India's current patent regime is facing. While this
might involve coming to a
consensus as to solutions (and that would be
welcomed), in our pragmatism we
understand that a consensus might not be arrived at,
and are ready to face
that. The important thing is to explore issues, and
all possible ways of
addressing those issues. The benefits of one approach
over another is not
something that we wish to push during this symposium.
This, I believe, is
reflected by the wide variety of views and opinions
that the speakers
represent. Thus, simply put, Mr. Basheer's "close
association" with the
pharmaceutical industry does not hamper his
participation in this symposium.
In fact, to get a variety of views, such a association
(if it did indeed
exist) would even be preferable. The pharmaceutical
industry is after all a
stakeholder, just as the poverty-stricken
medicine-less patient is a
stakeholder. The relative weights of their
stakeholding (and the issue of
India being socialist) is not something I wish to get
into here.

Secondly, Mr. Basheer's "close association" with the
pharmaceutical industry
is not a given. As he has pointed out (and Chan Park
has agreed), his report,
part of which was copied without the necessary
acknowledgement, by the
Mashelkar Committee, was based on solid research and
was substantiated. While
we may disagree with the conclusions that he arrived
at, the fact that it was
well-argued is not, I believe, at dispute. The dispute
is based on the
questionable assumption that the source of funding of
his research directly or
indirectly affected his views and biased his
conclusions. There is nothing to
support that assumption, especially given that he has
held those views even
outside of that report.  Funding of research and
"mercenerisation" of research
are different, and I see no evidence to Mr. Basheer's
research being the
latter.  In any case, even Mr. Chan accepts that. 
Additionally, in case of
doubt, I believe that he ought be given the benefit of
the same.  I hope you
agree.  Please note that these are my personal views,
and not that of the
organising committee.  Finally, I must thank you for
taking enough interest in
the Symposium to respond!

Regards,
Pranesh

On 4/11/08, Daya Shanker <
daya.shanker at deakin.edu.au[1]> wrote:

Dear Pranesh

It appears to be a very nice group of people but I do
not see why Shamnad
Basheer should be there. Didn't we discuss his role
during the Karnataka High
Court's decision in Novartis and his close association
with the pharmaceutical
industry? If a research output is based on the payment
made by the industry,
it destroys total sense of ethics and morality and
definitely academic nature
of the conference unless it is to provide legitimacy
to such research. I have
nothing personal against him or anybody but any
mercenerisation of research
destroys the total fabric of academic morality.



daya shanker

At 07:07 AM 9/04/2008, Pranesh Prakash wrote:

Dear All,

National Law School of India Review, the bi-annual
journal of the National Law
School, Bangalore is organising the First NLSIR
Symposium on the "Challenges
to India's Patent Regime". The Symposium is being held
from 12th – 13th April
(Saturday and Sunday) at the NLSIU campus in
Nagarbhavi, Bangalore and is
intended to promote healthy debate and discussion
amongst all the stakeholders
involved.

The Symposium has been structured to discuss the
cutting edge issues relating
to the Indian patent regime. Over four sessions, it
looks to cover the
theoretical justifications for patents, India's role
as a country which is a
signatory to TRIPS, the contentious issue of
pharmaceutical patents and
finally an analysis of possible judicial attitudes
towards patent law and
legislation in India. The Symposium brings together
judges of the Supreme
Court, patent attorneys from the USA, senior
advocates, technical experts,
ideologues and activists to facilitate constructive
discussion of the issues
set out and the best way forward for India's patent
law. Prominent speakers
include –
Judiciary
Justice AR Lakshmanan, Chairman Law Commission of
India; Justice PP Naolekar,
Judge Supreme Court of India; Justice Ravindra Bhat,
Judge Delhi High Court;
Justice DV Shylendra Kumar, Judge Karnataka High Court
Academics
Dr. Anil Gupta, IIM Ahmedabad; Shamnad Basheer, Oxford
IP Research Centre;
Srividhya Raghavan, Oklahoma University; T.
Ramakrishna, NLSIU; Sudhir
Krishnaswamy, NLSIU
Bar
Feroz Ali Khader, Advocate High Court of Madras;
Aditya Sondhi, Advocate
Karnataka High Court; Vinay Aravind, Poovayya &
Poovayya
Public Interest
Leena Menghaney, Access Campaign Manager - India, MSF;
Mr. Gopa Kumar, CENTAD;
Dr. Anand Grover, Director, Lawyers' Collective
For registration, please contact Apurva Rai,
+919886208285.   For more details
visit – http://www.nlsir.in/symposium.htm[2] or
contact Arghya Sengupta,
+919886023232.
Regards,
Pranesh Prakash

_______________________________________________
Ip-health mailing list
Ip-health at lists.essential.org
http://lists.essential.org/mailman/listinfo/ip-health
 




      Did you know? You can CHAT without downloading messenger. Go to http://in.messenger.yahoo.com/webmessengerpromo.php/