The Mashelkar Report Embraglio
The Mashelkar Committee was set up by the government of India consisting a group of five technical experts with Dr. Raghunath Mashelkar as the chairman of a group. The group was to consult different interest groups including intellectual property rights professionals, industry representatives, civil society organizations and others to find out whether the Indian Patent Law is compliant to the requirements under the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS). The specific focus was on pharmaceutical patents to find out whether it would be possible to limit patents exclusively to new chemical entity or to new medical entity involving one or more inventive steps and whether it would be TRIPS compatible to exclude micro-organisms from patenting. The report was crucial since a number of patent applications that had moved through the Exclusive Marketing Rights (EMR) phase were basically incremental innovations rather inventions of New Chemical Entities (NCE).
The Mashelkar Committee made comparative study of the practices in different countries and consulted different experts and reported in negative. It stated, ". In the light of the above discussion, it would not be TRIPS compliant to limit granting of patents for pharmaceutical substance to New Chemical Entities only. However, every effort must be made to provide drugs at affordable prices to the people of India. Further, every effort should be made to prevent the grant of frivolous patents and 'ever-greening'. Detailed Guidelines should be formulated and rigorously used by the Indian Patent Office for examining the patent applications in the pharmaceutical sector so that the remotest possibility of granting frivolous patents is eliminated."
Sometime later, there were news reports that certain sections of the Report prepared by Dr. Mashelkar were extracted verbatim from an article authored by Mr. Shamnad Basheer a faculty member of George Washington University, US (then with the Intellectual Property Institute, UK). Whether it was a case of plagiarism or whether the contents were borrowed is not a matter of contention but clearly Mr. Basheer's article was not intended to be a part of Indian public policy. As a direct result of this report, the well known pharmaceutical company Novartis cited the report in its pleadings before the High Court in Chennai and claimed that the Indian Patent law is not compliant to the TRIPS Agreement.
The developments sensitized the issue and Mr. Mahselkar apologized and redrafted the concerned sections. However there was pressure from the other members as well as the Indian government to scrap the entire report and re-write it. Dr. R. A Mashelkar resigned as the Chairman of the Technical Expert Group on Patent Laws on 15th March 2007. In order to re-examine and re-submit the report, the Group has requested the Government to grant them 3 months time.
New Technical Member (Patents) in IPAB in India
Mr. S. Chandrasekaran has been appointed as the Technical Member (Patents) at the Intellectual Property Appellate Board (IPAB), Chennai. He has assumed charge from 2nd April 2007. The IPAB is chaired by Justice M.H.S. Ansari, Mr. Z.S. Negi is the Vice Chairperson, the other Technical Members are Mr. S.O. Rahaman and Ms. S. Usha. Mr. G. Vijaya Raghavan is the Deputy Registrar. With the appointment of Mr. Chandrasekaran the IPAB has become fully functional to hear all appeals including that of patents. All patent litigations that have been pending before different courts in India after the Patent Act had been amended will now be taken up on appeal by the IPAB.
India joins in Bilateral Co-Operation Agreements on IPRS
Government of India entered into certain understanding with different nations to strengthen bilateral relationships. It has reached an understanding with United States Patent and Trademark Office, the European Patent Office, the Ministry of Economy, Finance and Industry of the Republic Of France in the field of Intellectual Property and a joint statement of intent on bilateral cooperation with United Kingdom on Intellectual Property rights individually.
The objectives of these agreements are to further co-operation in the field of Intellectual Property Rights as well as to promote economic and technological exchanges among these nations. The purpose of joint statement with UK is to establish a UK-India Joint Economic and Trade Committee (JETCO) for developing a strategic economic relationship between UK and India and to identify ways of increasing bilateral trade and investment. The understanding with EPO gives emphasis on Patents among other intellectual properties and training gets importance in the case of agreement with France.
According to the understanding, the parties shall develop annual programmes of co-operation in different areas including Patent Grant Procedure, Training and human resources development, Automation, Patent databases and data exchange, Awareness and innovation.
EPO will assist the Indian Patent Offices for the improvement of the patent grant procedure by providing advice and support to develop and update the CGPDTM "Examination Guidelines" with special attention to emerging areas like biotechnology or computer implemented inventions.
They have agreed upon automation of respective Intellectual Property Offices and procedural rationalization and simplification of processing of Intellectual Property applications by exchange of information on patent data, best practices in patent examination procedures, etc. They will also exchange information on their automation policies to optimize data exchange, mutual access to databases and administration procedures like (PCT) electronic filing. EPO may allow access to the EPOQUE system through PatNet on mutually agreed terms and conditions.
All the contracting nations recognize the importance of training and awareness in the field of Intellectual Property and accordingly formulated policies. Joint statement with U.K stresses on the training of patent and trademarks officials and the development of the profession of patent and trademarks attorneys. The nations agree to exchange their ideas in training and developing appropriate modules and curricula for the same. Agreement with USPTO and the Republic of France give importance to exchange of ideas in traditional knowledge. EPO would provide assistance for the establishment of an institute which will provide training and education of personnel as well as research and development in the field of intellectual property.
Parties would organize seminars, symposia and workshops for stakeholders, including, inventors, scientists, professionals, Intellectual Property managers, etc. as well as for the general public for creating awareness.
A Joint Consultative Mechanism or a Joint Committee will be established to monitor and evaluate the co-operation activities carried out. It will meet at least once a year and also at the formal written request of the Parties.
