Prof Baker too finds fault with Mashelkar's revised report after Correa's objections

Close on the heels of international patent expert professor Carlos Correa's criticism of the revised Mashelkar Committee report, another international patent expert professor Brook K Baker has lambasted the Mashelkar Committee report stating that the revised version underestimates India's right to define patentability.

For the second time, the Mashelkar Committee has misinterpreted India’s flexibility under international law to limit patents of pharmaceutical products to new chemical entities, or new medical entity involving one or more inventive steps (NCEs), professor Baker said. 

Although the Mashelkar report slightly modified and extended its analysis, it has made three fundamental mistakes: it still incorrectly analyses India’s flexibilities under TRIPS to define pro-health standards of patentability; it fails to analyse key TRIPS-minimum patent standards, especially novelty and inventive step; and it incorrectly concludes that a NCE-only standard of patentability for NCEs would constitute discrimination against a field of technology and in doing so misinterprets and misapplies the expert analysis of Professor Carlos Correa, an internationally renowned IP specialist.

The Mashelkar II Report provides only limited analysis of the most relevant provision of the TRIPS Agreement, Article 27. Although it refers the patentability standards of newness (novelty), inventive step, and industrial applicability, it undertakes no real analysis of the core minimums of these imprecise terms. 

In its first fundamental error, the Report mistakenly implies that the definition of invention (newness, inventive step, and industrial capacity) contained in Article 27.1 has any particular and definite meaning within the WTO TRIPS Agreement and that India lacks interpretive flexibility to give pro- health meanings to those terms. In particular, the Report ignores (does not even address) the flexibility that countries like India have under Article 1.1 of the TRIPS Agreement, which states that 'Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice'. (Emphasis added.) Likewise, it ignores interpretive flexibilities arising from Articles 7 & 8, from the Doha Declaration, and from India’s right-to-health human rights commitments, professor Baker said .