Critiquing the policy to incentivise patent filing by academicians, we are pleased to bring to you this guest post by Apoorv Kumar Chaudhary arguing why patents may not be relevant in every field and how this policy may result in frivolous patent applications. Apoorv is currently an Academic Fellow at National Law School of India University, Bangalore. He is also pursuing his PhD on criminal enforcement of Copyright in India from NLSIU. He can be contacted at apoorvkc[at]gmail[dot]com. The author would like to thank Professor Arul George Scaria and Ms. Vidya Subramanian for their inputs. Please note that the views expressed in the post are the author’s alone.
Perverse Incentives: How Academic Incentives are Counter-Productive to Innovation Ecosystem
By Apoorv Kumar Chaudhary
“The rise in patent applications in India demonstrate the rising innovative zeal of our youth and is a very positive sign for the times to come.”: Narendra Modi (See here)
In popular parlance, patents are often linked with innovation. This statement by Prime Minister Shri Narendra Modi, given in the context of the rise in patent applications by 31.6% in 2022, is a reflection of how patent applications are etched as a reflection for innovation in the minds of the policymakers as well. The University Grants Commission, in its Academic Performance Index, cites patents as one of the criteria for promotion of faculty in the universities. V. Kamakoti, Director of Indian Institute of Technology, Madras also lauded the efforts of his institution that had achieved its ‘patent target’ which will help India turn into a superpower. (Click here) This write-up attempts to question this conventional wisdom of linking filing of patent applications by universities to the innovative zeal of the universities. In fact, it argues that most patents, filed merely for career advancement, may be counterproductive to the innovation ecosystem in the country. This occurs because of two reasons, firstly, because patents are not beneficial in every field and secondly, because such incentives lead to frivolous patents being filed.
Patents Are Not Beneficial in Every Industry
Cho, Kim and Shin, in a study conducted in 2015, have pointed out that universal IPR protection may prove detrimental to certain industries, particularly industries which have a large number of micro, small and medium enterprises.(Cho, Kim and Shin, 2015) In the United States, National Academy of Sciences conducted a workshop comprising of stakeholders from three different fields- government, academia and industry. This workshop also points to the fact that various people in academia are skeptical of patent protection, mainly for two reasons.(National Research Council) Firstly, academic research builds up on the research of others, also known as standing on the shoulder of the giants. Secondly, not every piece of knowledge needs commercialization. Some knowledge, particularly in the nature of discovery, is better left unprotected so it can be developed upon.
In India, a study conducted by Jain, Sharma and Illvarasan. (Jain, Sharma & Illvarasan 2024) points out that patenting in academia varies depending on ‘institutional, departmental, and individual factors’. Researchers in patent intensive departments or departments where the results are easy to imitate see maximum number of patents being granted. The study also points out that making patents a criterion for career advancement may be counterproductive as it does not take into account the difference between patent intensive and non-patent intensive departments.
The Academic Performance Index by the University Grants Commission, however, is silent on this. Table 2 of Appendix II provides for the methodology of calculation of API scores for university and college teachers. (UGC Regulations) These API scores form the most important component for faculties to be considered for promotions, as per Clause 6.3 of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other measures for the maintenance of standards in Higher Education, 2018. The regulation does not make a differentiation amongst different streams or fields within the streams.
The non-differentiation of streams and sub-fields is problematic for several reasons. Firstly, this does not take into consideration that patents are almost irrelevant in many fields. For instance, what is the relevance of patents in subjects of humanities like history and sociology or pure sciences like zoology or botany? Secondly, it discourages people from pure sciences and pushes them towards applied sciences. Why should professors go for research in pure science like theoretical physics at all, when they could get patents in the field of applied sciences? As previous studies have pointed out, patenting is relevant in few fields of applied sciences and this non-differentiation, instead of promoting research, could lead to researchers going for research for the sole purpose of getting a patent, rather than researching for finding knowledge not previously known.
Frivolous Patent Applications
The UGC API Guidelines do not specifically mandate if a patent has to be granted if the said points are to be awarded. It, however, says that the assessments should be based on evidence such as patent application and patent grant. This creates an ambiguity if mere application for a patent is eligible for API points. In addition, National Assessment and Accreditation Council’s (NAAC) Manual for Universities, 2020 asks the universities to provide details for patents published/granted, making almost no differentiation between the two.(NAAC) This data sourced from the universities is used for accreditation of the university. For instance, see the data submitted by this university to NAAC. (This is a random example, there are many more universities that have done so)
In practice, the publication of the patent is merely a step towards its grant. Examination of a patent on its merits follows the publication of a patent. A completely frivolous application, ineligible for patent protection, can be published by the patent office, but it will be examined only if the Request for Examination is made by the applicant. Equating publication of patent with the grant of patent encourages the filing of frivolous applications, which may be abandoned at a later date. There are several examples of such applications published in the Patent Journal. Many of these applications are hastily drafted and merely describe a half developed idea of a product based on technical buzzwords which are currently in vogue.
In the Patent Journal published on 12/04/2024, there are several patents filed by universities. While some of them are from renowned universities, many others are from institutions which are unknown in the field of innovation. Below are some of the examples, picked at random. Some of these applications, in the author’s opinion, are too vague to be granted a patent and some of these do not satisfy the test of novelty or inventive step.
(Disclaimer: The views expressed below are author’s preliminary views, based on prima facie reading of the applications. Any corrections or counter-views are welcome.)
- Patent Application number 202411017639 is about a social media platform based on blockchain. The specification in the application is a simple collection of features. It does not enable a person skilled in the art to achieve the said invention, adds nothing to already available blockchain based social networks like Verasity, and uses all buzzwords pertaining to blockchains.
- Patent Application number 202411018482 is for an augmented reality textbook, which provides the content of a physical textbook in an augmented reality platform. Neither the description nor the drawings are detailed enough to enable a person skilled in the art to make or use the invention. The drawing, in fact, is merely a flow chart which explains how the system will work. This flow chart and the description is much less detailed than this paper on the same topic published in 2013. (Click here)
- Patent Application number 202411018483 is a Blockchain based system for maintaining IP systems through smart contracts. This application is also a simple collection of features, and does not enable any person skilled in the art to make the patent. There are several websites that already provide these features. (See here) It is questionable as to how this adds anything to the current state of knowledge, which already provides for more safeguards. (See here)
- Patent Application number 202411018745 is a GSM wearable monitoring system to track physiological parameters. This application is also a collection of features. Although it explains how the supposed invention works, the working is very rudimentary in nature and is anticipated by the state of the art in 2017. (See here)
- Patent Application number 202411017219 is filed for a Voice activated assistant system based on Artificial Intelligence and internet of things. The product has four main components- AI enhanced natural language processing, IOT integration for smart devices control, privacy enhancing mechanisms like encryption and an adaptive learning system based on a feedback loop. However, even in the detailed description, no details have been disclosed. The claims and description do not disclose what is the encryption method used, how natural language would be processed by the system and even the brief details about the algorithm based on which the AI works. Any person skilled in the art would have no idea as to how this patent would be implemented to create the system.
- Patent Application number 202421005507 is filed for a “Novel Approach of Surfactant Metal Complexes assisted anticancer drug development and activities.” The claim of the invention is a method to increase the impact of anticancer drug using surfactant metal complexes. The claim is extremely vague in the sense that these surfactant metal complexes are not at all named. The claim also says that cell differentiation will be targeted using “various extracellular and intracellular targeting strategies”. The patent application, in effect, does not disclose what these strategies are or how the patent is supposed to work.
The patents discussed above are filed by different universities, both private and public, which the author does not want to name. In the author’s personal view, the specifications fall well short of the standard of disclosure under S. 10 of the Patent Act, 1970 which requires the disclosure “fully and particularly describe the invention and its operation or use and the method by which it is to be performed” and “disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection.” Some of these merely present state of the art and do not satisfy the test of novelty and inventive step. Most importantly, these applications are just an example of a larger malaise of using trending scientific terms in vogue- Artificial intelligence, Internet of Things and blockchain to create an application in which the product cannot be made with the information disclosed.
Moreover, filing a patent application also involves time and money as well. If the universities are tempted to file a patent on behalf of their faculty, it also leads to a waste of resources if such patents are merely frivolous. If it is a public university filing patents merely for the sake of accreditations, it leads to a waste of public money that could be used in actual research.
Recommendations
To ensure that such incentives for career advancement to increase the number of patents do not turn into perverse incentives, it is important to ensure that such incentives are specialized in nature. Technologies that are more patent intensive should be identified and incentives should be granted only for such fields. Moreover, only patent grants should be considered by UGC and NAAC for career advancement, not mere publication of a patent application. Otherwise, we may see research in universities only for the purpose of filing patent applications in future.
There are further problems with chasing patents which this article does not cover, even in the fields where patents do not have much relevance now. (See here and here) Whether India should opt for quantity over quality, whether institutional changes are required to promote commercialization of patents instead of filing more patents, whether the patent office is eligible for examining increasing number of applications, and whether these patents are actually being worked or not- these are not the questions that this paper seeks to address. These questions can be answered only after a further research and analysis.
In order to make India a superpower, the innovation by the universities has to play an important role. Thus, it is important to ensure that patent incentives actually lead to further innovation, not mere filing of patents.
(The author has refrained from giving more details about the applicants as the intention is not to pinpoint individuals, but to bring out the flaws in the current UGC API and NAAC regime.)