Bangladesh Patent Act 2012
How far maintains TRIPS standard?
Md. Mostafa Hosain
The obligation of States towards TRIPS (Trade-Related Aspects of Intellectual Property Rights) has been reflected in Article 1 of the TRIPS which states that “members shall give effect to the provisions of this agreement”. As TRIPS will be enforced from 1st July of 2013 in Bangladesh mainly regarding agricultural chemical product, the newly drafted legislation called “Bangladesh Patent Act, 2012” tried to comply with TRIPS standard in almost all aspects except a few points. Furthermore, the Act states that after entering into force of this Act of 2012, all the provisions relating to patent in the earlier both Patent and Design Act, 1911 and its Amendment Act of 2003 shall be repealed. Although the Act is yet to enforce but it is high time to look at the Act whether it maintains TRIPS standard and whether it will be capable of resolving all existing lacuna.
Bangladesh Patent Act, 2012
Now coming to the contents of the Act, section 2 of the Act defined patent as “a granted monopoly right to protect any invention by which the patentee has been permitted to prevent any other person to use his invention within Bangladesh”. This definition is more comprehensive in comparing with the definition given in earlier Act of 1911. Regarding preconditions of patentability, TRIPS provided in article 27(1) that it must be new, involving inventive steps and having industrial application whereas in the Act of 2012, the only point which differs from TRIPS is instead of inventive step, it states the condition of 'originality' under section 4. The relevant provision of TRIPS is more comprehensive comparing with the Act of 2012. The reason is that TRIPS mentioned 'invention shall be in all field of technology either product or process'. This portion is not articulated in the Patent Act of 2012, inclusion of which would make the provision more specific and comprehensive. Regarding subject matter of patentability, the new Act is more comprehensive and contentious comparing with the Act of 1911 mostly because it categorised what can't be patentable in section 3 of the Act. Discovery, scientific theory, mathematical method, business method, computer programmes, mental act, diagnostic, therapeutic or surgical process in human or animal body are not the product used for that purpose, natural objects, discovery of new use for a known substance, plants or animals and essentially biological processes all are not patentable. Furthermore, on the ground of ordre public and morality, granting of patent shall be refused. Under section 15 of the Act, 2012 in case of illegally accessed genetic resources, patent shall be refused if the question of ordre public or morality comes. But micro-organism, non-biological process, micro-biological process, process applied for segregating any natural thing from its inherent environment are patentable under the Act of 2012. Patenting of agricultural chemical product and pharmaceutical product shall temporarily be excluded from patentability till 1st July of 2013 and 1st January of 2016 consecutively under section 3(2) of the Act. Regarding patenting of biotechnology, scholars apprehend that it will create monopolisation and binds poor farmers and communities to leave their advantageous means of livelihoods or causes concerns in food security. As TRIPS will be enforced in Bangladesh on and from 1st July of 2013, food-stuffs, seeds, agricultural chemicals, herbicides or other agro-products made of patented bio-technology are likely to assume higher price and make them exorbitant for the poor Bangladeshis. Furthermore, in Doha round it was a demand of developing and LDC countries to specify and mention the name of origin of product and genetic resource of product, some suggest that this should be articulated in the Patent Act of 2012.
The provision regarding grounds for rejection of patents based on public order and morality under the Act lacks specificity comparing with TRIPS provision. Although article 27 (2) of the TRIPS has been inserted in section 3(2) of the Act, but it has missed a few points of article 27(2). The portion mentioned as “protection of human, animal or plant life or health or to avoid serious prejudice to the environment” in article 27 (2) a flexibility for member-state to prevent commercial exploitation on the ground of ordre public and morality, has not been articulated in section 3 of the Bangladesh Patent Act. Secondly, article 27 (3) (b) of the TRIPS provided that “member shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” Although sui generis protection is suggested by scholars to be advantageous for Bangladesh, this part of TRIPS provision is absent in the Patent Act of 2012. Talking about our neighboring country India, it has made law titled “The Protection of Plant Varieties and Farmers' Rights Act, 2001”. But we don't have any legislation in this regard. In absence of any legislation securing farmers' rights, the plant breeders Rights enriched in International Convention for the Protection of New Varieties of Plants (UPOV) Convention is likely to cause the heavy burden of payments to the agriculture-prone Bangladesh resulting in change of livelihood of farmers and affecting the foodstuffs produced from the protected seeds. Although under section 12 of the Act, rights of any farmer using his produced crops in his own supervision for the purpose of propagation is ensured where patent holder can't prevent a farmer to do such.
The duration under article 33 of TRIPS is 20 years whereas under section 14 of Patent and Design Act 1911, it was 16 years. But in the new Act of 2012, the duration was complied with TRIPS in section 13 of the Act. Regarding compulsory license, section 14 of Bangladesh Patent Act of 2012 has not properly complied with TRIPS. The provision of TRIPS in this regard is article 8 which provides, “members may take necessary measures……to promote the public interest in sectors of vital importance to their socio-economic and technological development,” whereas section 14 of Bangladesh Patent Act 2012 has not included “socio and technological development” and it has only inserted economic development as a ground for taking necessary measures.
As a student of law, I think that before passing any legislation, a scrutiny examination has to be conducted and specially regarding this Act, it has to be tested and examined by IP practitioners, jurists, legal scholars, concerned experts and students of law so that it can resolve the lacuna and meet the challenges after coming into force. Since TRIPS will be entered into force in Bangladesh, points which are not included in the Act but provided in TRIPS have to be taken into account to insert in the Act. Most importantly, broadening grounds of compulsory licenses mentioned in the Act, sui generis protection or other means of protection of plant varieties provided in TRIPS, specification or mentioning of origin of product produced in microbiological process as demand of developing and LDC are issues to be taken into account for the legislation to be purposeful and meaningful in application.
The writer is student of LL.M, South Asian University, New Delhi, India.