Mashelkar Report controversy

Though we have noted about this in our Indian Current Affairs blog as it was developing, it is time to consolidate all what we know at one place to have a backgrounder in the issue for reference.

You can’t get a better backgrounder on how or why the Committee came to be constituted, from anywhere other than the report itself. Let’s take a look at the opening paragraphs of the report:

“The Patents (Amendment) Bill, 2005, introduced in the Parliament in March, 2005 with the objective of making the Patents Act compatible with India’s international obligations, particularly under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) had the benefit of detailed discussion in both the Houses. During the debate, the issues regarding patentability of micro-organisms and the definition of 'pharmaceutical substance' to mean “a new chemical entity (NCE)” or “new medical entity (NME)” were raised. The Commerce and Industry Minister then assured the Parliament that he would refer these issues to an Expert Committee for detailed examination and report the matter to the Parliament.”

Accordingly, a Technical Expert Group on Patent Law Issues was set up by the Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion in April, 2005.

The terms of reference for the expert group were:

1. 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; and
2. Whether it would be TRIPS compatible to exclude micro-organisms from patenting.

Take a look at the full report here, if you have got the patience to go through the full report.

Why it ran into trouble was that it was accused of plagiarism. The report had lifted three paragraphs in its conclusion from a 2005 paper authored by a research scholar Mr. Shamnad Basheer. His research work was commissioned by the UK based Intellectual Property Institute.

But in the subsequent that was raised about it is very easy to forget the recommendations of the committee on the terms of reference. What are they?

1. On the first point of reference, it has answered that it would not be TRIPS compliant to limit granting of patents to New Chemical Entities only. Patents are to be granted for incremental innovations.
1. It is worthwhile to note that at present, under Indian laws there is NO patent protection for incremental innovations. So this recommendation of the committee, is seen by the red brigade as a pro-MNC stance of the committee.
2. On excluding micro-organisms from patenting, it observed that such exclusion would be violative of TRIPS Agreement.

As of today, the position is that the government says that it cannot act on the report unless the ‘technical inaccuracies’ are corrected. But Mr. Mashelkar says that, as he has resigned from the Committee, there is nothing more that he needs to do.