Journey Through “Augusts” on SpicyIP (2005 – Present)

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lokesh vyas

Sep 11, 2023, 6:45:04 AMSep 11

In the previous months, I journeyed through the posts published in “Junes” and “Julys” of decades past on SpicyIP, tracking how some IP stories developed over the years. Whether it is South Asian Basmati Brawls, the much-to-tread trail of transparency, the Statements of Patent (Non-)Working, or the Indian “Bayh Dole” Bill, some stories never cease to beguile us. In this post, let’s continue the journey and sift through SpicyIP’s “August” pages from 2005 to the present and see where we have arrived after all these years.

If you have missed the previous posts of this series or want to follow it, please check SpicyIP Flashbacks!

Here we go:

1. Mashelkar, Patents, Industry Funding, and Bias: In August of 2009, Prashant wrote about the Government of India’s acceptance of the conclusions of the Mashelkar Committee Report. The Committee, which has been a matter of much controversy (see also here), was to examine two main questions: “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 “whether it would be TRIPS compatible to exclude micro-organisms from patenting.” Both of these questions were answered in the negative. (See Prof. Basheer’s contextualization and Prashant’s clarification on the report.)

However, the controversy arose more over the issue of bias and industry funding. The story starts when the first Mashelkar report (which was later retracted) was alleged of plagiarizing a part of a commissioned study by Prof. Basheer. The said study was commissioned by IPI (Intellectual Property Institute) and funded by Interpat, an association of multinational pharmaceutical companies. This fact was explicitly acknowledged in the report. However, the allegation of plagiarism by a Governmental committee from an academic’s commissioned report caused an uproar insinuating the influence of industry on the reports. Prof. Basheer categorically responded to these allegations here and here. He later wrote a post Clarifying Popular "Mashelkar Myths.

Several years later, Prashant again touched on this issue of bias and industry funding against the backdrop of Ericsson’s patent lawsuits, saying that it is possible to conduct meaningful research and conferences even with industry funding. He wrote detailed posts on this topic later here and here. Prof. Srividhya Ragavan’s views on the issue, however, differed as she believed that “an industry will not fund unless that funding suits the industry’s agenda.” Prof. Basheer also shared Some Personal Reflections in the Aftermath of the Mashelkar Massacre and suggested a path Towards Transparency and a Plurality of Perspectives (See also here). This was followed by Prof. Arul Scaria’s post arguing that the responsibility for such biased research and conferences should be on researchers willing to compromise the fundamental principles of scientific research for financial gain or other rewards. Talking about this topic, the issue of Judicial Recusals also shouldn’t be left untouched – an issue that has been the heart of several IP controversies, notably the Novartis dispute. On this topic, long-time readers would know well-worded posts like Pondering Judicial Recusals and In Defence of Justice Dalveer Bhandari.

Nevertheless, these issues of bias and funding are multifaceted and can’t be understood in black and white. Only through more discussion and deliberation, we can have more light (and less heat) on them.

2. Hello MHRD IP Chairs: This month in 2013 two Ministry of Human Resource Development (MHRD) IP Chairs were axed, though were later reinstated. One may ask what an “MHRD” Chair is. Well … first thing first. It is no more an “MHRD” IPR Chair, but is a “DPIIT”- IPR Chair. These Chairs were first created under the IPERPO scheme of MHRD but were later revised by the Scheme for Pedagogy & Research in IPRs for Holistic Education and Academia (SPRIHA), under the Ministry of Commerce and Industry (See here for more). Also, see Prashant’s post about shifting the Copyright Office from the MHRD to the Department of Industrial Policy & Promotion (DIPP) to get some bits on the history of this institution.

One troubling issue with the MHRD Chairs was the opaqueness of its functioning. See CIS’ excellent work on this here, which Arundathi also relied upon while discussing the issues of indiscriminate Chair appointments and relegations, and the lack, or non-finding of them. But what happened to the “revised” DPIIT IP Chairs? Any significant changes? Not really ... At least it isn’t obvious, if so! The Parliamentary Standing Committee Report No. 169, released in 2022, mentions regarding IPR Chairs that “a total of 1009 activities/works were conducted by the Universities/Institutes in the FY 2020-21 which include publishing of Books/Journals, conducting Seminars/ Conference/ Workshops, Academic works, patent works registered, Internships/training, Research activities, etc.” However, it is not easily possible to find the actual details of all these works without resorting to RTIs. And it appears that we still don’t have separate working websites for all revised IP Chairs. Upon an online search, I only found MHRD IP Chair websites. Although after filtering my research I could see some specific pages for IPR Chairs from the main College websites, there was no specific information about all the projects, funding, utilization of funds, etc. that the IP Chairs undertook. (Please correct me, if I should have researched in a specific manner.) Interestingly, the Copyright Office website still enlists the non-working websites of “MHRD” IP Chairs. The MHRD IP Chair website, which should ideally contain all the information regarding MHRD IP Chairs only gives a false impression of providing that information. Relevantly, Victor Vaibhav touches upon several related questions when he asks ‘What ails Indian universities when it comes to patenting?’ while discussing the Indian Narrative on Innovation and University Research.

While there are many administrative and bureaucratic reasons for the severe lack of transparency, a fundamental issue lies in the dearth of meaningful discussion and in-depth examination of this issue. 

3. Life of IP and Counterfeit Goods: In this month, 2009, Prof. Basheer penned a post Rigging Data: IPRs and the IMPACT of Counterfeits. As the title suggests, it calls for more fact-based policy-making and not giving or believing in any number thrown out there to support a policy narrative. But why would one rig data that too at a platform where it is very likely to attract scrutiny? The reason seems simple: when these data come from individuals in authority, their credibility is oft-assumed. On the top, when these data come to validate our social consciousness around certain acts like “counterfeiting and piracy are bad and help terrorism(?)”, they become more believable. This is why buzzwords like counterfeiting and piracy, which hold relevance for every IP branch can be easily used to shape the course of a discourse.

If readers remember the Home Minister’s speech linking copyright infringement to terrorism, on which, Prashant filed an RTI application to know if there was any actual data with the ministry. The results revealed that the Ministry of Home Affairs had no particular source of the data. Nishidh did a detailed post on this issue called Counterfeit Industry Landscape in India: A Need for Introspection. Speaking of this topic, one must not miss the Special 301 Report, a report that often rides on words like piracy and counterfeiting while justifying the placement of countries on its ‘Priority Watch List.’ Tellingly, over the years, the discourse on counterfeiting and piracy appears to have become increasingly sensationalized, leading to the enactment of more stringent laws and harsh penalties. The most recent example of this is the Cinematography Act, 2023, which imposes severe punishments for piracy without really defining piracy or presenting substantial empirical data to justify its punishments. Likewise, we have made piracy, a form of copyright infringement, a non-bailable and cognizable offense. If anything, these developments show that there needs to be more fact-based policymaking - one that is not driven by self-certified data and our faith in IP.

4. Where is the Whistleblower Act now: 14 years ago, in the same month, Prashant shared the news of introducing a whistle-blower scheme in India. It sought to protect all those informants who volunteer information on spurious or counterfeit drugs. The next year 2010, news came that a whistle-blower researcher was arrested after disclosing problems with voting machines. Given the alarming status of drug regulation and innovation in India, such an endeavor “had” great potential to provide a safe harbor to those who dared to divulge the lapses in the regulation and regulation system for public interest with some state protection. However, this scheme also never came into force!

Here’s the journey of this scheme from a “Bill” to an “Act” to an “unenforced Act?”: a bill named the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 was passed in Lok Sabha and referred to the standing committee, which submitted its report in 2011. After being passed by both houses, it received the President’s assent and became the Whistleblowers Protection Act, 2011 renamed as Whistle Blowers Protection Act, 2014 by the second schedule of the Repealing and Amending Act, 2015.

But here’s a hitch: while the Center notified the 2014 Act, it informed the Parliament that some crucial amendments were to be made in the act to enforce it. To that effect, the Whistle Blowers Protection (Amendment) Bills 2015 and 2017 came to amend the 2014 Act. However, they could not be passed and ultimately lapsed upon the dissolution of the 16th Lok Sabha before the 2019 general elections. Then, the Government told the Lok Sabha that the current laws are adequate for the safety and security of all citizens.

In sum, while the 2009 scheme that Prashant spoke about became the law in 2014, it never got enforced, thus, leaving us in the same position as 2009!

5. India and its Drug Regulation: Be it being berated by the WHO for lacking independence and functioning under pressure or coming up with a problematic Drug Patent Linkage proposal, India’s drug regulation system has often been a cause of consternation. Prof. Basheer’s August 2007 post "Suicide" Inducing Drug in India: Need For More Stringent Drug Regulation brooded over such a troubling case of a diet control drug linked to suicides that had received approval in India. Time and again, the issue of drug regulation has popped up. For instance, in 2015, Prashant, against the backdrop of European drug regulators going against GVK Biosciences, raised serious concerns about the possible ‘capture’ of the Ministry of Commerce by the Indian pharmaceutical industry. Recently, the Jan Vishwas Bill 2023 came, reducing and removing punishments for several drug-related crimes that would further damage the drug regulation system. The recent Gambia tragedy, which took the lives of 66 kids at the hands of a syrup manufacturer Maiden Pharmaceuticals (a known offender?), testifies to what Prof. Basheer noted once in his post Killing Me Softly: “For, with each passing day, we’re suffering a regime that kills, albeit all too softly, through a laxity in the law. A laxity that the layman may not immediately grasp. But one which a responsible government (and even judges) should make it their business to study and understand before it is too late.

I conclude our journey of "Augusts" and leave these IP stories here, hoping to visit them again in the future with more light and less heat. See you soon in our next sift through “Septembers”!

Thanks to Praharsh and Swaraj for their input.

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