Indian Patent Law and the new turn

The legal challenge to India’s patent laws from Swiss drug giant Novartis has taken a knock with a crucial report that it is banking on being withdrawn by its authors. In an unprecedented move, R.A. Mashelkar, former director-general of the Council of Scientific and Industrial Research (CSIR), asked the government on 19 February to withdraw the report of the Technical Expert Group (TEG) that he had headed on account of “certain technical inaccuracies … that have inadvertently crept in”.
India’s chief boffin, who submitted the report before demitting office last December, offered his “unconditional apologies” to the government while taking full responsibility for “this unfortunate development”. Mashelkar has been accused by lawyers and health activists of pandering to the multinational drug lobby after Novartis submitted the TEG report to the Madras High Court on 15 February. Novartis is challenging a specific prohibition in the law, Section 3 (d), which restricts the grant of patents.
The Lawyers Collective, which is fighting the Novartis petition on behalf of the Cancer Patients Aid Association, had accused the TEG of lifting verbatim a paragraph from a 2006 report on limiting patentability by the Intellectual Property Institute (IPI), a UK-based think-tank that had submitted its position to the group. The Lawyers Collective pointed out that the report was authored by Shamnad Basheer, a doctoral student and an associate at the Oxford Intellectual Property Research Centre, University of Oxford, had been crowing on his website about his coup in getting the critical paragraph in the TEG report. They allege Basheer’s research was commissioned by the IPI and financially supported by Interpat, a Swiss association of major European, Japanese and US research-based drug companies committed to the improvement of intellectual property laws around the world.
Basheer had last month hailed the TEG’s recommendations, which support the contention of Novartis, as “a very sensible suggestion to me — not least because these conclusions were extracted from a report that I submitted to the committee”. Basheer had said it “flatters one to know that the extraction happened verbatim, though I would have been happier had the committee cited the source”.Mashelkar appears to have been left with little choice after the expose. However, his contention that he would submit a new report in three months after rectifying the errors, begs a question. Can a discredited committee be allowed to make a fresh submission without a new mandate? Top officials of the department of industrial policy and promotions (DIPP), which is looking at the report, were unavailable for comment. The government, meanwhile, is under pressure from the Indian drug industry to appoint a proper defence team to counter the challenge to its patent law.
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