----- Original Message -----
From:
To:
Cc:
Sent: Wednesday, February 28, 2007 11:54 PM
Subject: Mashelkar - Times of India article
>
> Some of you will have read a report in today's Times of India in which the
> plagiarism of my work by Shahid Alikhan and R Mashelkar in their 2004 book
was
> exposed. I don't really want to add too much to the story. People can of
course
> check for themselves and are free to judge the situation as they see fit.
There
> is a view common among people who think they are very important that
others
> should be grateful to be cited at all. And it is true that a book I wrote
with
> the late Darrell Posey, which reproduces similar text to the plagiarised
> article, is cited elsewhere in their book. So Alikhan and Mashelkar may
use
> that to make some kind of a bogus case that I have been given "due
credit". I
> am hoping nobody is going to swallow that. They did indeed cite that book
a few
> pages earlier, but it was from a completely different part of the book and
on
> another issue entirely, and a very specific one. In case you are
interested it
> concerned a plant collection expedition in Samoa. If you read the Times of
> India article you will know that is a completely different topic from that
of
> the text plagiarised, which elaborated on a concept called traditional
resource
> rights, coined by Posey. Incidentally, Darrell Posey got insufficient
credit for
> his lifetime achievements that included his heroic defence of the rights
of
> indigenous peoples and his determined efforts to help turn traditional
> knowledge protection into the mainstream issue it is today.
>
> Graham Dutfield
> Herchel Smith Senior Research Fellow
> Queen Mary, University of London
>
> www.ccls.edu
>
Zotero [zoh-TAIR-oh] is a free, easy-to-use web browser extension to
help you collect, manage, and cite your research sources. It has been
developed by the Center for History and New Media (CHNM) at George Mason
University http://chnm.gmu.edu and is now in use by thousands of
historians, anthropologists, journalists, lawyers and other
researchers.
Zotero is an open source alternative to citation tools like Endnote, and
lives inside of your browser, allowing you to automatically capture and
manage sources and citations in online catalogues, archives, and other
repositories, as well as taking notes, tagging these materials, and
exporting bibliographies in various formats. For more information and to
download and install Zotero, go to http://www.zotero.org
Zotero requires use of Firefox 2.0, the latest version of the popular
open source web browser from the Mozilla Corporation. If you don't
already use Firefox or haven't yet upgraded to the new version 2.0, go
to http://www.getfirefox.com to download it. Once you've installed it or
upgraded your earlier version, go to the Zotero site to download and
install the extension for Firefox 2.0.
Best,
S.K.
Very interesting case.......
Begin forwarded message:
> From: Irina Aristarkhova
> Date: 27 February 2007 8:33:03 PM GMT+05:30
> To: reader-list@mail.sarai.net
> Subject: [Reader-list] Microsoft lost! Linux wins?
>
>
> There has been moderately active Linux community in Russia, with
> availability of cheap hardware and good programming skills. However,
> there has been little government or institutional support, and a lack
> of understanding of why one would want not to use Windows. But not
> anymore.
>
> Runet and Russian official media have been flooded with discussions
> and instructions on open source, and what it would take to drop
> Microsoft 'soft' altogether. All this has been prompted by the recent
> legal case of 'Microsoft versus Ponosov'. Alexander Ponosov is a
> school director from a Perm' region (Ural mountains), who does not
> seem to be an 'advanced' Windows user himself (which in Russia
> usually means word, exel and powerpoint). However, he was charged
> with violating Microsoft copyright, and under the current legal
> provision could be sentenced for 5 years in jail. Plus Micrisoft side
> demanded 266.593.63 roubles (presumably calculated to equal 10.000
> dollars, but the dollar is falling), from a school director whose
> salary is probably 200-300 dollars per month (at best!).
>
> What is it all about? 20 computers in his school computer lab, with
> illegal copies of Windows, claims Microsoft side, that violates
> piracy law and its IP.
>
> It started as a quiet case, but gradually became a matter of national
> concern. It became about "American multi-national mammoth
> corporation" against "a little man" of our own. The fact that Ponosov
> (whose name, curiously, might be translated both as related to 'nose'
> as well as 'diarrhea' that is widely referred to in Runet) looked
> like he had no clue what it is all about, was an 'ordinary' man,
> making very little money in a remote secondary school, unconnected to
> IT sector, showed how unwise Microsoft actions were. Until then
> Russia was demonstratively trying hard to fit Western IP laws. But 5
> years in jail for 20 computers in a school lab?
>
> First, Russian bloggers started flooding Microsoft with letters that
> they all use pirated Windows, and that they are ready to go to jail
> for Ponosov. He had no idea what was on those computers, while they,
> real programmers and IT geeks, know what they are doing. Take me!
> Leave a poor school teacher alone! they were typing and e-mailing off.
>
> Second, Russian television and press jumped on this out of control,
> pressing local authorities to think further (at first it seemed as if
> Microsoft surely had the case, and would win it. Ponosov was visibly
> worried that he would lose).
>
> Microsoft corporation still had no comment, saying it is handled by
> its office in Moscow.
>
> Third, Gorbachev wrote an open letter to Bill Gates, asking him to
> personally interfere, and stop the case. Putin called the case "dog's
> rubbish".
>
> It was becoming an international scandal for Microsoft. And Bill
> Gates in his reply to Gorbachev distanced himself and his corporation
> from this case, arguing that it was started by Russians against
> Russians, and Microsoft had nothing to do with it.
>
> Meanwhile, Ponosov was becoming more and more visible and vocal,
> giving interviews to BBC and other major media.
>
> About two weeks ago a judge ruled that this case should be dismissed,
> since the charges (10,000 dollars and 5 years in jail) were
> unreasonable.
>
> Ponosov is unhappy and plans to appeal, he wants to be declared
> 'innocent'. Microsoft lost a very important case, made more important
> by its own making. And Russian officials, schools and Runet are busy
> discussing what it would take NOT to use Windows. They are not sure
> yet, and they feel it is a difficult task (Office price is about 5
> dollars for a pirated copy). But they've started discussing it. For
> the first time so seriously and openly.
>
> Irina Aristarkhova
>
> PS. This is a short extract from one of the letters to Moscow
> Microsoft head Olga Dergunova:
>
> "Respected and Dear Olga,
>
> My name is Sasha, I live in Mitischi (near Moscow), and I am 30 years
> old. I have never - you hear me? never - bought any licensed
> software. And I never will. Let me know if you want my passport
> number, my address, and go ahead, sue me. I'd be only happy. I have
> about 15 unlicensed Microsoft products installed on my laptop. All of
> it - pirated. I am not ashamed, and please do not tell me about
> programmers who want to eat. ... Sue me, not Ponosov. And sue another
> one million people like me. It is not about love: that we do not love
> you personally, or Bill Gates - abstractly. We love everybody. It is
> you who hate us." (translated from a full letter and a blog at
> http://forum.msk.ru/material/news/19486.html)
>
>
>
>
> _________________________________________
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A more complete version from the Spicy IP Blog:
http://spicyipindia.blogspot.com/2007/02/deconstructing-mashelkar-committee.html
Coming as I do from the relatively apolitical world of research and
academia, the events of the last two weeks have taken me by surprise and
left me wondering as to how easy it is for the substantive issues in any
debate to get sidelined.
I thought I’d reflect on the “real” issues surrounding this controversy
once the “name” calling and personal/ad hominem attacks had died down.
But it only seems to be getting worse. Friends keep asking me as to why
I haven't said anything on my blog yet. I therefore thought this an
opportune time to attempt to deconstruct some of the arguments that are
being flung around in this controversy.
I wrote a letter to the TOI and Hindu in response to the editorials that
first sparked off this controversy and include it below.Unfortunately,
despite more than a week going by, neither of these papers have
published this. Fortunately, the DNA carries some of the key points that
I'd stated in the respose to the TOI and the Hindu. See
http://dnaindia.com/report.asp?NewsID=1081968.
Also, the Hindu Business Line carried my interview where I have tried to
clarify some of the factual inaccuracies regarding this debate--see
http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm
TO THE EDITOR OF THE TIMES OF INDIA
Dear Sir/Madam:
This refers to your article dated 12 February 2007, titled “Patent
Wrong” by Chan Park and Achal Prabhala. In the process of critiquing the
Mashelkar Committee Report, the authors have called into question my
academic integrity, albeit indirectly. They have also alleged that the
Committee “plagiarized” key conclusions from my submission.
I first deal with their charge of plagiarism, since I am the alleged
“victim” here. They attempt to substantiate their claim of plagiarism by
selectively quoting from my blog. They however omit the most critical
part of my blog statement in this regard “To be fair to the Committee,
they did include the crux of my submission in an Annex to their Report.”
In other words, the Committee did include my submission as an Annexure,
as they did with every other submission (about 24 in all) that was made
to them. It bears noting in this regard that the Committee received
submissions from a variety of IP stakeholders including industry
(Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms
(Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired
members of the judiciary (Justice Krishna Iyer). Those with the patience
to read the entire report including the Annexures would have gathered
that some of the Committee’s observations were borrowed from my report
to them. This being so, qualifying their borrowing of some of my
conclusions as “plagiarism” is incorrect.
Park and Prabhala may not have intended this, but their writing casts
aspersions on my academic integrity. If I understand their argument
correctly, it runs something like this:
1. Shamnad Basheer is commissioned to write a paper on certain TRIPS
issues for the purpose of submission to the Mashelkar Committee.
2. The paper is commissioned by the Intellectual Property Institute
(IPI), with funding from Interpat.
3. Therefore, this paper necessarily reflects the industry position of
Interpat.
4. Therefore, Shamnad Basheer exercised no independent judgment, but
merely reiterated Interpat’s industry position.
5. The Mashelkar Committee was wrong to rely on the conclusions of a
paper that reflects Interpat’s position.
These “leaps of logic’ rest on certain incorrect assumptions:
1. Anything funded by the pharmaceutical industry has to necessarily
represent an industry view/position, despite the fact that the person
commissioned holds himself out as an objective and independent academic.
2. The IPI is an “industry think-tank” that always resonates industry
positions on all issues, despite the fact that its website
(http://www.ip-institute.org.uk/) makes clear that is an independent
charitable organisation which organises and peer reviews IP research.
3. The Mashelkar Committee blindly relied on the conclusions of my
paper, without exercising any independent judgment of its own, despite
the fact that it comprises members who are highly distinguished in their
respective fields and known for their integrity.
Most importantly, the Park and Prabhala paper does no more than beg the
question: is there something wrong with the analysis of TRIPS undertaken
by me and relied on by the Committee? Park and Prabhala brush off this
rather nuanced issue on TRIPS compatibility with broad statements such
as “the report overlooks these (TRIPS) flexibilities—even the judgment
of the WTO on this matter”.
Their note omits to explain as to what these “flexibilities” are, or
where, in their opinion, the said flexibilities stem from and more
importantly, which judgment of the WTO they are relying on—particularly,
when there is not “one” but several WTO panel decisions dealing with
TRIPS.
Article 27 of TRIPS mandates that patents shall be granted to all
“inventions” in all “fields of technology”, provided such inventions are
new, non obvious and have utility. Having studied TRIPS in some detail
and now teaching it to graduate students at the George Washington
University, my own view (as expressed to the Committee in more than 35
pages in a report that is now the subject matter of controversy) is that
the term “invention” as used in Article 27 of TRIPS is to be vested with
some basic meaning i.e. at the very least, it denotes something of
“technical” import. Were it to be a term “freely” interpretable
according to the whims of member states, we could end up with a
situation where a member state may argue that it needn’t grant patents
at all, since its unique lexicon suggests that nothing ever amounts to
an “invention” under Article 27. In short, the term invention would be
rendered redundant and such a result would fly in the face of a basic
tenet of treaty interpretation that is well accepted under international
law—that one cannot read a treaty term in a manner as to render it
redundant.
Incremental pharmaceutical inventions are very “technical” in nature,
and ought to fall within even the lowest common denominator that any
sensible reading of the term “invention” would offer. As such, their
exclusion from patentability (when the other patentability criteria of
novelty, non obviousness and utility are satisfied) is likely to
contravene the mandate under Article 27 to grant patents to all
“inventions”.
Unfortunately, Park and Prabhala fail to engage with any of these
substantive TRIPS issues. They may have had the best of intentions, but
what they’ve engaged in amounts to what can at best be described as an
adhominem argument which, according to Wikipedia, “consists of replying
to an argument by attacking or appealing to the person making the
argument, rather than by addressing the substance of the argument. It…..
consists of criticizing or personally attacking an argument's proponent
in an attempt to discredit that argument.”
The authors also reference section 3(d), a highly controversial section
that is the subject matter of a lawsuit by Novartis in this debate, when
the Committee never really speaks about section 3(d) in their report. It
bears noting that the Committees mandate was never to examine the TRIPS
compatibility of section 3(d) or of any existing provision in the Indian
Patents Act and to be fair to them, they never engaged in this
exercise.
This being so, it is rather far fetched to allege a “conspiracy” theory,
simply because the Mashelkar Committee chose to adopt some of the
positions advocated in my paper and to use some of the language from my
paper. One has to bear in mind that this Committee was commissioned by
the Government to come to a conclusion as independent technical experts.
They were entitled to deliberate, seek outside guidance and then come to
their own conclusions as they deemed fit. Of course, as I point out in
my blog, although they got their conclusions right, the key failing of
the Committee is in not demonstrating how they worked through the TRIPS
issues/analysis in their report. Park and Prabhala conveniently ignore
this not so “waxing jubilant” reception to the Committee Report in my
blog.
A “thin analysis”, appears to be their main grudge against the Mashelkar
Committee Report. It’s a sheer pity that the authors failed to use this
fantastic opportunity (very rarely does one get space in the editorials
of two leading newspapers on the same day) to “fatten” their own
analysis.
The author is the Frank H Marks Visiting Associate Professor of
Intellectual Property Law at the George Washington University law
School, where he teaches a course on TRIPS, pharmaceutical patents and
public health.
Shamnad Basheer
Frank H Marks Visiting Associate Professor of Law
George Washington University Law School
Washington DC-- 20052
Ph: 001 (202) 957 3442
Email: sbasheer@law.gwu.edu
On Sun, 2007-02-25 at 23:57 +0530, Achal Prabhala wrote:
> http://dnaindia.com/report.asp?NewsID=1081968 Empty allegations
> Sunday, February 25, 2007 20:32 IST Shamnad Basheer
