The TEG's report clearly suggests that limiting patenting of ‘pharma substances’ to new chemical entities or new medical entities only by excluding new forms that satisfy the relevant TRIPS criteria, is not TRIPS compliant. The report has also made a distinction between ‘evergreening’ of patents and patenting of ‘incremental inventions’. According to the report, evergreening represents an extension of patent monopoly by the way of ‘trivial and insignificant changes’, which the the committee noted as that this is an avoidable practice. But it gave full marks to incremental inventions calling them sequential developments, patenting of which could be of tremendous value.
As noted elsewhere, the decision in KSR v. Teleflex has relevance to the debate in India over the Mashelkar report. The US Supreme Court and Dr. Mashelkar/US Pharma seem to be heading in opposite directions. Separately, what's going on in India in patent oppositions may have relevance to proposed "oppositions" in the US; the article notes: We must also re-introduce the old pre-grant opposition process in place of the current wasteful pre-grant opposition process," suggests Ramesh Adige, Executive Director, Ranbaxy.
Of the plagiarism matter connected to the report:
The ill-fated report came under severe criticism for plagarising a portion of the report from a paper, 'Limiting the Patentability of Pharmaceutical Inventions and Microorganisms: A TRIPS Compatibility Review', written by Shamnad Basheer, a doctoral student and an associate at the Oxford Intellectual Property Research Centre, University of Oxford. What added fuel to the fire is the fact that Basheer's paper was funded by Interpat, a Swiss association of major European, Japanese and US research based pharmaceutical companies. After the criticism, the report was soon withdrawn on the grounds of ‘technical inaccuracy and plagiarism’. According to Mashelkar, the plagiarism came to their notice only after the committee had submitted its report through a newspaper report. While Mashelkar resigned from the chairmanship of the expert group on Patent Laws after the controversy, he rejected the argument that the report was influenced by MNCs.
This in turn evokes the issue of Cha (and/or subordinates) publishing in Fertility & Sterility work that came from the Ph.D. thesis of Kim, without crediting Kim, which might be deemed plagiarism. Separately, the Fertility & Sterility authors failed to inform Fertility & Sterility of a pending patent application. Although the plagiarism/conflict issues are a big deal in the Indian matter, they seem to be far less so in the Korean/American matter.
Of KSR, see On the Supreme Court decision in KSR v. Teleflex.