The Bangladesh Patent Act, 2023: Balancing innovation and public interest

Patents for pharmaceutical and agrochemical products are limited according to TRIPS Council rules. Photo: TBS

Intellectual Property Rights (IPR), particularly patents, are critical for fostering innovation. They grant inventors exclusive rights, encouraging investment in research and development (R&D). 

The Bangladesh Patent Act, 2023, represents a significant reform in the nation's intellectual property landscape. By aligning with international standards such as the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the Act promises a modernised framework. However, questions remain about whether it adequately balances innovation incentives with public interest priorities, like access to affordable medicines.

The Bangladesh Patent Act, 2023, replaced the Patents Act, 2022, as part of ongoing efforts to modernise the country's intellectual property system. These changes trace back to the repeal of the old Patents and Designs Act, 1911, showing Bangladesh's commitment to updating its patent laws to meet global standards and encourage innovation.

Patentable subject matter

The Bangladesh Patent Act 2023 updates patent eligibility rules to meet global standards while keeping some exclusions based on public policy and ethical concerns. Eligible applicants can include original inventors, joint inventors, and employers of inventors under certain conditions, and their legal representatives or assignees. 

The act also lists what cannot be patented, such as scientific discoveries, mathematical methods, medical processes, biological resources in their natural form, and anything harmful to public health or morality. Patents are also excluded for traditional knowledge, artistic works, and inventions related to atomic energy. 

Additionally, patents for pharmaceutical and agrochemical products are limited according to TRIPS Council rules, depending on government approval. These exclusions help ensure that patents foster innovation without violating ethical standards or public welfare.

Application process and formalities

The Department of Patents, Industrial Designs, and Trademarks (DPDT) manages patent applications to ensure consistency and efficiency. Applications must include details about the applicant, proof of inventor status, and technical descriptions. Provisional applications are allowed but must be followed by a full specification within 12 months.

Patents are published for public review 18 months after filing, with options for pre-grant opposition within six months and post-grant opposition within 24 months. These processes let others challenge the patent on grounds like lack of novelty or incomplete details. Applicants can also withdraw and reapply under certain conditions, ensuring flexibility and transparency.

Patent duration and maintenance

The Act provides a standard patent term of 20 years from the filing or priority date in line with TRIPS. Patent holders must pay annual renewal fees to keep their patents active. If these fees aren't paid, the patent may be cancelled, but it can be restored within two years if there's a valid reason. 

Rights and obligations of patent holders

Patent holders are granted exclusive rights to prevent third parties from producing, using, or selling patented products or processes without consent. These rights are transferable through assignment or licensing agreements, which must be registered with the DPDT. Licensing agreements are kept confidential but are enforceable only after official recording. These provisions enable patent holders to exploit their inventions commercially while allowing for collaboration and technology transfer.

Exceptions and limitations

The Act includes limitations on patent rights to balance innovation with public interest. Under Section 36, compulsory licenses can be issued for emergencies, anti-competitive behavior, or unmet public demand. Section 40 allows the government to use patents for public purposes like health and environmental needs, with fair compensation to the patent holder. Section 62 provides exceptions for personal, educational, and research use, ensuring broader access to patented ideas without compromising inventors' rights.

Cancellation, revocation, and litigation

Patents in Bangladesh can be cancelled or revoked if they don't meet key criteria like being new or fully disclosed. The government can also revoke patents in the public interest, especially if they threaten public health or welfare. 

Patent disputes are handled under the Civil Procedure Code, with the option to set up special courts for these cases. Violations can lead to fines of up to Tk50,000, ensuring accountability. These rules aim to create a balanced patent system that encourages innovation, while considering ethical, economic, and social needs.

Examples from around the world 

Patentability criteria

Bangladesh follows global standards for granting patents, requiring inventions to be new, inventive, and useful in industry. However, the law doesn't clearly prevent patents on small changes to existing products, which can lead to "evergreening." Evergreening is when companies make minor changes to extend patent protection and delay generic competition.

In India, the Patents Act, 1970, prevents this by requiring significant improvements in effectiveness for pharmaceutical patents, helping keep medicines affordable, as seen in the Novartis v. Union of India case in 2013. 

In the UK, patents can't be granted for abstract ideas, natural biological materials, or treatment methods focusing on ethical concerns, especially in biotechnology. 

The US has strict standards for novelty and inventiveness, with court rulings like Alice Corp. v. CLS Bank (2014) limiting patents on abstract software ideas. 

Australia tightened its patent laws in 2013 to ensure inventions are genuinely innovative and well-documented, reducing the risk of poor-quality patents.

Compulsory licensing

Compulsory licensing allows governments to permit others to make and sell a patented product without the patent-holder's consent, especially during public health crises. Bangladesh's law includes this, but the rules are less detailed compared to other countries.

India has a strong framework for compulsory licensing. For example, in 2012, India allowed a company to produce an expensive cancer drug, Nexavar, at a lower price, ensuring access for patients. 

The UK also allows compulsory licensing, but it is rarely used. Australia focuses on preventing companies from misusing patents to create monopolies. 

In the US, such licenses are rare and mainly apply to government-funded inventions.

Public health concerns

International agreements like TRIPS allow countries to adjust patent rules to meet public health needs. Bangladesh's law includes provisions for compulsory licensing and government use of patents but lacks clear guidelines on how they should be applied. 

India's laws focus on public health, preventing patents on minor pharmaceutical updates and rules for compulsory licensing to keep medicines affordable. 

The US has laws like the Hatch-Waxman Act, which help generic medicines enter the market more quickly, balancing innovation with affordability. 

In the UK, ethical guidelines and cooperation with Europe ensure patents don't harm public health. 

Australia uses its Pharmaceutical Benefits Scheme to negotiate drug prices, ensuring essential medicines stay affordable.

Recommendations for future reforms

To further align with international best practices and foster a balanced IP regime, Bangladesh should consider the following reforms:

To strengthen its patent regime, Bangladesh should adopt clear guidelines on patentability to address challenges such as "evergreening." Limiting patents on incremental pharmaceutical innovations will help prevent undue extensions of patent protection and ensure fair competition in the market.  

The framework for compulsory licensing also requires enhancement. Detailed criteria for issuing licenses are essential for ensuring consistent application and alignment with TRIPS flexibilities. This will provide clarity to stakeholders and maintain a balance between innovation and public welfare.  

Introducing Supplementary Protection Certificates (SPCs) could further boost the pharmaceutical sector. By allowing selective patent term extensions, SPCs can attract investments while accommodating the need for affordable generic production.  

Additionally, institutional capacities need strengthening. Providing the Department of Patents, Industrial Designs, and Trademarks (DPDT) with improved resources and training will help streamline patent application processes and enhance overall patent quality.  

Creating a dedicated Intellectual Property Tribunal can accelerate the resolution of disputes. Such a tribunal would not only speed up proceedings but also ensure better enforcement of patent rights, offering more confidence to inventors and investors.  

Finally, fostering transparency is critical. Developing a publicly accessible patent database would facilitate research collaboration and reduce risks of infringement. It would also ensure that stakeholders can easily access relevant patent information, fostering innovation in the long term.  

The Bangladesh Patent Act, 2023, is a big move towards bringing the country's intellectual property system in line with global standards. However, there are still gaps in areas like incremental innovation, compulsory licensing, and public health, that need further attention. 

By learning from countries like India, the UK, and Australia, Bangladesh can build a patent system that encourages innovation while protecting the public interest. A balanced patent system will attract investment, boost innovation, and ensure the position of Bangladesh as an IP leader.

Fardeen Bin Abdullah/ Sketch: TBS

Fardeen Bin Abdullah studies LLM at the Department of Law, University of Rajshahi.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.