Interest Group Capture

The Times Of India
In February 2007 the technical expert group (TEG) on patent law reform chaired by R A Mashelkar withdrew its report, saying that it needed three more months to rectify technical inaccuracies, further review its submissions and eliminate ‘unfortunate’ plagiarism. While the TEG is right in withdrawing the report, it is unclear that it understands why this is the right decision.

While the plagiarised sections may easily be reworded, a failure to recognise the interest group capture evident in the report is an error of substance and process which cannot be eliminated by mere rewriting. It is important to focus on the institutional and public policy principles at stake in this unfortunate episode in patent law reform.There are two basic issues here: academic integrity and conflict of interest, and governance and policy-making in a pluralist democratic framework.

The TEG report relied extensively on, and quoted without citation from, a 2005 paper which was funded by an association of multinational pharmaceutical companies, INTERPAT. Was the TEG wrong to rely on this industry-sponsored paper? The author of the paper defends the academic integrity of his paper by citing his university affiliations as a law professor and a doctoral student, and insists that since his paper satisfies the highest academic standards, only academic objections are relevant. For an academic to claim that one’s research is both neutral and not compromised, it is not sufficient to merely belong to an academic institution in the formal sense.

Other conditions under which the research is carried out are relevant as it is necessary to prevent a potential blurring of the lines between one’s role as an academic researcher and as a consultant.

A fundamental requirement for the paper to be an academic paper is that one should not receive financial assistance from any party which has a commercial interest in the outcome of the research. The 2005 paper was funded by INTERPAT which consists of multinational pharmaceutical companies directly concerned with findings of TEG. It would make little difference if the paper had been funded by Indian generic pharmaceutical companies.

In either circumstance, we must conclude that research done under these conditions is ‘consultancy’ research which represents the concerns of a particular interest group. It does not follow that we should not take consultancy research seriously, or that the authors of such work deserve our moral censure, but merely that we recognise the distinction between academic research and consultancy research — and the different role that each must play in policy formulation.So how should TEG function as an expert policy forum while reviewing these research papers? From a pluralist democratic perspective, policy-making and governance is irretrievably nestled in a sea of interest group politics. Policy-makers and government functionaries cannot be swayed by the forms and fashions of discourse and must advance the ‘public interest’ in all circumstances. To meet this demanding standard, policy-making must be an exercise in elaborate public reasoning — where policy-makers consider varied interest group positions and reconcile them in a coherent fashion.

TEG has completely failed to meet this standard or appreciate its role. Recent disclosures point out that the central conclusions in their report are directly reproduced — without citation — from a consultancy research paper. Mainstream media debate in the last fortnight has focused on the charge of plagiarism. But an equal, if not more serious concern, is interest group capture. In the absence of a vigilant civil society which exposed these faults, the plagiarised conclusions would have masqueraded as the ‘official view’ and may have even secured government approval. The public morality of the policy formulation process is of far greater consequence than the personal morality of TEG members that the charge of plagiarism highlights. The TEG report needs more than a cursory review.

Under no circumstances should the TEG be allowed to resubmit its report. Instead, it should be submitted to a policy-making forum that is capable of scrupulously eliminating the prospect of interest group capture and engaging in the meticulous public reasoning that we deserve.


This article was originally published in the Times of India on March 16th, 2007


Sudhir Krishnaswamy, Interest Group Capture (The Times Of India, 16th March 2007)