The Politics of Patent Citations: Are Some Scholars More Equal than Others?

Last week, I was in for a bit of a shock! Spotted this piece on SSRN that touts the idea of an “investment protection regime” for new inventions.

I’d mooted the very same idea (an investment protection regime for inventions) in my PhD thesis more than 8 years ago. This was later published (around 6 years ago) in the Journal of World IP,  as below:

Shamnad Basheer, “The Invention of an Investment Incentive for Pharmaceutical Innovation”, 15 Journal of World Intellectual Property 1 (2012).  

I’d put up a copy of the piece on SSRN as well. Also my PhD thesis itself was uploaded on the Oxford database of theses

Apart from this, I’d also cited the investment protection model in later articles of mine (which I’ve listed in an addendum below this post). Several blog postings on SpicyIP also referred to this model. 

And yet this recently released piece titled “Recoupment Patent” (authored by 3 academics from Universities in Israel) makes no reference at all to my piece and its central idea of an investment protection regime. Rather, it goes on to tout this “recoupment” of investment as a “novel” idea. Here is what the recoupment authors state:

Under this new model, the patentee must prove the level of investment in each invention, and the duration of the patent will depend on that level of investment. This will establish a time frame to recoup investment and earn some level of profit.”

Compare this with what I had stated (as the central thesis) in my piece:

“…patents offer a uniform period of protection to all inventions, without regard to the actual investment per drug or its consequent social value.

…I propose a comprehensive investment protection regime that helps recoup all investments incurred during the drug discovery and development process. …Unlike patents and data exclusivity, which offer uniform periods of protection, it rewards investments in a proportionate manner, wherein drug originators are entitled to protection against free riders only until such time as they recoup their specific investments and earn a rate of return on investment dependent inter alia on the health value of the drug.

The formulation of such a regime relieves the patent regime from the task of investment protection, a task for which it is ill-suited. Consequently, countries need not unduly lower their patentability thresholds in order to protect pharmaceutical investments.”

Whither Attribution?

Did the recoupment authors not see my piece? Or did they see it and decide to not attribute anyway?  Interestingly, the recoupment authors cite to a whole host of other authors who’ve touched (mostly peripherally) on issues of investment protection…but then fail to credit the one author who comes closest to the central ideal of investment protection (namely, me). More interestingly, some of the US pieces that they cite to contain citations to my investment protection piece.  

Of course, my idea of investment protection is centred around pharmaceutical drugs and I argue that we must have a separate legal regime for this. Particularly since its relatively easier to do so for drugs (given that they have to cross a “regulatory” filter in order to merit protection). The recoupment authors, on the other hand, propose the investment protection regime for all patentable inventions (as I understand). But does the mere extension of my idea to all patentable inventions give them the leeway to completely avoid referencing my piece?

Shocked and disappointed, to say the least! Are Indian academics (or any academics outside of the mainstream US/EU networks) not worth citing to? Or to paraphrase Orwell: Are some scholars more equal than others?  And this paves the way for yet another piece on the politics of scholarship and citations. Which I hope to do shortly. 

ps: Image from here.


Other pieces of mine that refer to the Investment Protection Model

  1. Alternative Incentives for Pharmaceutical Innovation“, 27 Intellectual Property Journal 13 (2014).
  2. The End of Exclusivity: Towards a Compensatory Patent Commons”, 58 IDEA 229 (2018).

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

One comment.

  1. Gairik Ghosh

    How do you redress this? Even giving the author a benefit of doubt, which we shouldn’t because they have claimed their proposal to be “novel”, what’s the way to make them rectify this? Do you write to the authors or to the publisher? If they don’t respond/ refuse to acknowledge, which would take away their novelty, what’s the next step? Would SSRN be involved?


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