Navigating the New Frontier: A Comprehensive Guide to Patent Law and Registration in Bangladesh under the Patent Act, 2023

Section 1: The Modernization of Bangladesh's Patent Regime

The intellectual property landscape in Bangladesh has undergone a period of unprecedented transformation, culminating in a new legal framework designed to align the nation with global standards and foster a modern innovation economy. This evolution marks a decisive break from a century-old colonial legacy, driven by the strategic imperatives of international trade obligations and the nation's economic aspirations. Understanding this legislative journey is crucial for any inventor, enterprise, or legal practitioner seeking to navigate the country's patent system.

1.1 From Colonial Legacy to Global Alignment: The Repeal of the 1911 Act

For over a century, the primary legislation governing intellectual property rights for inventions and designs in Bangladesh was the Patents and Designs Act, 1911. A relic of the British colonial era, this Act became increasingly anachronistic as the global economy shifted towards knowledge-based industries and new international IP standards emerged, particularly the WTO's TRIPS Agreement.

1.2 The Legislative Journey: The 2022 Act and the Refinement of 2023

The first major step in this modernization was the Bangladesh Patent Act, 2022, which repealed the 1911 Act's patent provisions. This was swiftly followed by the Bangladesh Patent Act, 2023, a refined framework aimed at full TRIPS compliance ahead of Bangladesh's 2026 graduation from Least Developed Country (LDC) status. The 2023 Act represents the culmination of this effort, solidifying the legal infrastructure for innovation in Bangladesh's new economic era.

1.3 The Department of Patents, Designs and Trademarks (DPDT): Centralized Authority

The primary government body for IP administration is the Department of Patents, Designs and Trademarks (DPDT). Under the 2023 Act, the DPDT's administrative head is now the Director General, who holds powers akin to a civil court. This centralization is designed to improve efficiency, combat bureaucracy, and build confidence among domestic and international stakeholders.

Section 2: The Pillars of Patentability under the 2023 Act

The Bangladesh Patent Act, 2023, establishes a clear and modern set of substantive requirements that an invention must meet to be granted patent protection, aligning the country's legal standards with prevailing international norms.

2.1 The Threefold Test: Novelty, Inventive Step, and Industrial Applicability

• Novelty: An invention is new if it is not part of the "prior art" – any information made publicly available anywhere in the world before the application's filing or priority date.
• Inventive Step (Non-Obviousness): The invention must not be obvious to a "person skilled in the art," representing a genuine technical advancement.
• Industrial Applicability: The invention must be capable of being made or used in any kind of industry, linking it to practical, real-world applications.

2.2 Statutory Exclusions: What Cannot Be Patented

Sections 6 and 7 of the Act explicitly list subject matter excluded from patentability, including discoveries, scientific theories, mathematical methods, business methods, computer programs per se, methods for medical treatment, and traditional knowledge. This reflects a deliberate policy to safeguard the public domain and address ethical considerations.

2.3 Introduction of Utility Models: A Strategic Option

A significant feature is the provision for Utility Model Patents. This second-tier protection is designed for minor or incremental inventions that may not meet the strict inventive-step requirement of a standard patent. It offers a shorter protection term of 8 years and is a strategic tool to empower local innovators, particularly Small and Medium Enterprises (SMEs), by providing a faster and cheaper path to IP protection.

Section 3: The Patent Registration Process: A Step-by-Step Guide

The 2023 Act establishes a structured, multi-phase process for obtaining a patent. A thorough understanding of this chronological process is essential for any applicant.

3.1 Phase I: Application Preparation and Filing

The journey begins with filing a formal application at the DPDT. Applicants can file with a provisional specification to secure an early date or a complete specification. A complete specification must be filed within 12 months of a provisional one. While not a PCT member, Bangladesh is a party to the Paris Convention, allowing applicants to claim priority from a filing in another member country within a 12-month window.

3.2 Phase II: Examination and Publication

After a formalities check, the application is published 18 months after its filing/priority date. A key change is the mandatory request for substantive examination. The applicant must file this request and pay the fee within 36 months; otherwise, the application is deemed abandoned. This ensures only actively pursued inventions proceed, improving DPDT's efficiency.

3.3 Phase III: Opposition Proceedings

The Act introduces a robust two-stage opposition system:

• Pre-Grant Opposition: Within 6 months of the application's publication.
• Post-Grant Opposition: Within 24 months of the patent's grant date.

3.4 Phase IV: Grant, Sealing, and Post-Grant Procedures

If the examination is successful, the DPDT issues a decision to grant. The applicant must then pay a sealing fee to have the patent formally sealed and receive the Letters Patent. The entire process is estimated to take 4 to 6 years.

Section 4: The Life of a Patent: Term, Maintenance, and Rights

A granted patent confers a significant commercial advantage but also imposes ongoing responsibilities to keep it in force.

4.1 The 20-Year Term of Protection

In line with the TRIPS Agreement, a patent term is 20 years from the filing date or priority date. This provides a substantial period of market exclusivity.

4.2 Exclusive Rights of the Patentee

A patent grants the exclusive right to prevent others from making, using, selling, offering for sale, or importing the patented invention in Bangladesh without consent. These rights can be sold (assigned) or licensed, but any such agreement must be in writing and registered with the DPDT.

4.3 Maintaining Validity: Annual Renewal Fees

A patent's validity depends on paying annual renewal fees (annuities), starting from the 6th year. The 2023 Act has a strict three-month payment window each year with no provision for extension. Failure to pay on time will cause the patent to lapse. A lapsed patent can be restored within 2 years if the non-payment was unintentional.

Section 5: Enforcement, Infringement, and Dispute Resolution

The value of a patent lies in its enforceability. The 2023 Act establishes a dedicated legal framework for this purpose.

5.1 Defining Patent Infringement

Infringement occurs when a third party, without authorization, performs any of the exclusively reserved acts (making, using, selling, etc.). Lawsuits can be initiated by the patent holder or an exclusive licensee.

5.2 Legal Recourse: Jurisdiction and Burden of Proof

Infringement lawsuits must be filed in a District Court, with appeals heard by the High Court Division. While the burden of proof is generally on the patent holder, it can shift to the defendant in cases involving process patents for new products.

5.3 Available Reliefs: Injunctions and Damages

Courts can grant injunctions to stop infringement and award monetary compensation through damages or an account of profits. The Act also provides for criminal remedies and border measures to prevent the import of infringing goods.

Section 6: Strategic Guidance for Applicants

Navigating Bangladesh's new system requires a strategic approach that accounts for its unique position in the global IP landscape.

6.1 The PCT Anomaly: Strategies for International Filing

A critical point for international applicants is that Bangladesh is not a member of the PCT. Foreign entities must file a direct national application with the DPDT, typically using the Paris Convention to claim priority within the 12-month window. This creates a unique landscape where firms willing to manage the direct filing process can secure protection in a market some competitors might overlook.

6.2 The TRIPS Context: LDC Graduation and the Pharmaceutical Frontier

Bangladesh is set to graduate from LDC status in 2026. This will phase out TRIPS flexibilities, requiring the country to grant and enforce patents for pharmaceutical products. This transition will compel the strong domestic generic industry to shift towards a model of research and original innovation.

6.3 Critical Analysis: Gaps and Future Challenges

While the 2023 Act is a major step forward, potential challenges remain. These include a need for robust safeguards against "evergreening" in pharmaceuticals, a lack of clarity on AI-generated inventions, and the need for a system to positively protect traditional knowledge for the benefit of local communities.

Appendix: Fees, Forms & Flowchart

Appendix A: Schedule of Official Government Fees for Patents

The following table outlines key official government fees. A 15% Value Added Tax (VAT) is applicable to all fees. Applicants should always verify the current schedule with the DPDT.

Appendix B: Key Official Forms for Patent Registration

The following are the principal forms used in the patent application process. The full set of forms under the 2023 Act is being finalized.

Appendix C: Patent Registration Procedural Flowchart