Patent
In the age of globalization, protection for intellectual property is considered as one of the vital elements to the future economic growth & development of all Countries. Patent may be the cornerstone for innovation & development, currently in Bangladesh. Companies, organizations or individuals in Bangladesh who are obsessed to secure their intellectual property rights choose “The Lawyers & Jurists” – a law chamber having expertise in intellectual property rights.
“The Lawyers & Jurists” has significant experience in all areas of practice before of Patent Law in Bangladesh. They are involved at the initial stages of evaluating technology for patentability, drafting and prosecuting patent applications, and analyzing patents for enforcement opportunities. “The Lawyers & Jurists” is widely recognized as one of the top law firms for handling some of the most complex procedures in Bangladesh, such as interferences, ex parte and inter partes reexaminations, and reissues. The following are the procedures of patenting in Bangladesh:
Patent is a set of exclusive rights granted to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. In Bangladesh, it is document issued, upon application, by the Department of Patents and Designs acting under the Ministry of Industry of Bangladesh explaining the concerned invention and establishes the exclusive rights of the person to whom the patent is granted. However, an invention in order to be protected by the grant patent must fulfill tree conditions. The invention must be new ones that is to say, it grasp for the first time. It is required to involve an inventive step, which means the creative idea of the inventor is a significant and noticeable one. And lastly, it must posses the quantity of industrial application. An application for patent may be made by any person or not, whether alone or jointly with other persons.
An application for the registration of patent shall be filed to the Patents and Designs wing of the Department of Patent, Design and Trademark. An application must be made in the prescribed form and must be left at the department of patents, designs and trademark in the prescribed manner as per the Patents & Designs Act, 1911.An application must contain to the declaration to the effect that the application is in the possession of an invention and must be accompanied by either a provisional or by complete specification and with the prescribed fees.
A description of the invention (called the ‘specification;) is an essential part of a patent and constitutes the quid pro quo for the grant of patent monopoly. It describes the invention and the method by which it is to be performed full and particularly. The Registrar may require suitable drawings to be supplied at any time before the acceptance of the application and such drawings shall form part of that specification. The Registrar may also require a sample or model, which illustrate the invention or alleged to constitute the invention to be supplied before the acceptance of the application in particular case. A patent specification is technical as well as legal document. A patent specification may be of two types i.e. provisional and complete. A provisional specification must describe the nature of the invention. An application may file provisional specification that need not be full and specific. It is filed with the purpose of fixing the priority date of the patent. Where a provisional specification is filed, the applicant gets a maximum period of 10 months to file the complete specification. During this period, he may develop or modify his invention, which can be incorporated into the complete specification. A complete specification is demanded for the purpose of availing the concerned invention to the public after the protected period. A specification must be drafted with utmost care. All the statement in it must be accurate and include all possible variations of the invention to guard against infringement. The grant of patent solely depends on the specification, which are complex types of document to draft. Therefore, it is better to be drafted by professionals having good skill in this field.
On receiving the complete application, the registrar shall refer to an examiner in respect of which a complete specification has been filed and if he is not satisfied with the report of the examiner may refuse to accept the application or require that the application, specification or drawing be amended before he proceeds with the application, and on the later case the application shall, if the registrar so directs, bear the date as from the time when the requirements is complied with. The grounds upon which the registrar may refuse to accept an application are stated in section 5 (1) of the Patents and Designs Act, 1911.
On the acceptance of the application the registrar shall give notice thereof to the application and shall advertise the acceptance; and the application, specification and the drawing (if any) shall be open to the public inspection. After the acceptance of an application and until the date of sealing a patent in respect thereof, or the expiration for the time for sealing, the applicant shall have the like privileges and the rights as if a patent for had been sealed on the date of the acceptance of the application. But in such case, the patentee will not be entitled to any proceeding for infringement until the patent has been sealed. Any person may, on payment of the prescribed fees, at any times within four months from the date of the advertisement of the acceptance of an application, give notice at the Department of Patents, design and trademarks of opposition to the grant of the patent on certain specified ground. The grounds are as follows:
1. That the applicant obtained the invention from him, or from a person of whom he is the legal representative or assign; or
2. That the invention has been claimed in any specification filed in Bangladesh which is or will be of prior date to the patent, the grant of which is opposed;
3. That the nature of the invention or the manner in which it to be performed is not sufficiently or fairly described and ascertained in the specification; or
4. That the invention has been publicly used in any part of Bangladesh or has been made publicly known in any part of Bangladesh; or
5. That the complete specification describes or claims an invention other than that described in the provisional specification, and that such other invention either forms the subject of an application made by the opponent for a patent which if granted would bear a date in the interval between the date of the application and the leaving of the complete specification, or has made available to the public by publication in any document published in Bangladesh in that interval.
The notice for opposition must be filled only on the above-mentioned grounds and no other grounds can be attached with the notice for claiming opposition. Where such notice is given, the Registrar shall give notice of the opposition to the applicant, and shall, on the expiration of those four months, after hearing the applicant and the opponent, if desirous of being heard, decide on the case. The decision of the Registrar shall be subject to appeal to the Government.
If there is no opposition, or in case of opposition, the determination is in favor of the grant of patent, a patent shall, on payment of the prescribed fees, be granted, subject to such conditions (if any) as the Government think expedient, to the applicant or in case of a joint application to the applicants jointly, and the Registrar shall cause the patent to be sealed with seal of the department of patents, Designs and Trademarks.
1. A patent is a bundle of rights, which may be divided and assigned or retained in whole or in part, the owner of a patent enjoys exclusive rights to exclude others from exploiting the patented invention. The exclusive rights has two main application in practice i.e. Protection against infringement and possibility of assigning or licensing the right in part or in whole. A patent right may, which relates to any products, be exploited as follows-
1. To make the product,
2. To use the product,
3. To sell the products,
To authorize others to do the above acts in whole or in part.
Where an invention is patented which contain process, the owner enjoys the following rights-
1. To use products directly obtained through the process
2. To make the product directly obtained through the process,
3. To the sell the product directly obtained through the process,
To the authorize the product directly obtained through the process,
The term limited in every patent for duration thereof shall, save as expressly provided by this Act, a patent shall be dated and sealed from the date of its application. Notwithstanding anything contained therein or in this Act, a patent shall cease if the patentee fails to pay the prescribed fees within prescribed times. A patentee may present petition to the Government praying that his patent may be extended for a further term; but such petition must be left at the Department of patents, designs and trademarks at least 6 months before the limited for expiration of the patent and must be accompanied by prescribed fees and must be advertised by the patentee within the prescribed time and in the prescribed manner. Any person may give notice to the Registrar of the objection to the extension. The government may dispose the petition for extension itself or refer it to High Court Division for its disposal. The Government or the High Court Division, after considering the nature and merits of the invention in relation to the public, the profits made on the patent and to all circumstances of the case, if it appears that the patent has not been sufficiently remunerative, it may by order extend the term or grant a new patent, the term extended for a further period shall not exceed 5 years or in extended case 10 years, the Government or the high Court Division may by order grant the new condition as it thinks fit .
Where any patent has ceased owing to the failure of the patentee to pay any prescribed fees within the prescribed time, the patentee may apply to the Registered in the prescribed manner for an order for the restoration of the patent. Section 12 confers exclusive rights to the patentee that he may make, use, sell or authorize others so to do, where a patent is granted to the two or more persons each of these persons shall be, in absence to a contract to the country, entitled to the equal rights in the patent, but none of them shall be entitled to assign or license his share in the patent without the consent of the other co-owner
1. A patent may be transferred from the original patentee to the other person by assignment, or by license, or by mortgage, or by operation of law. A patent may also be transferred to the Government. Sometimes the transfer of the may occur compulsorily. Legal or equitable. A legal assignment, A mortgage is documents transferring the patents, wholly or partly, to the mortgagee with a view to secure the payment of a sum of money. A patentee may by license, authorize others to make, use, or exercise the invention, which would otherwise be illegal for them person to do. A patent may be transferred by the operation of law if the patentee dies, or become insolvent or in case of juristic person when it dissolves, Subject to the other provisions of this section, a patent shall have to state that the inventor of any improvement in instruments or munitions of war may (either for or without valuable consideration) assign to the Government all benefit of the invention; and the Government laid down in detail in section 21A.where it is found the demand of a patented article in Bangladesh has no been met to an adequate extend and on reasonable terms, any interested person may file petition for a compulsory license, Such application may be filed by any interested person and it must be must be made to the Government (Department of patents, designs and trademarks).A patent may be revoked either by the order of the Government or High Court Division ,At any time lot less than four year after , the date of a patent has been granted under this Act, any person may apply to the Government for relief under this section on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the Bangladesh. Infringement means the violation of the violation of exclusive rights granted to the patentee. The statute conferred exclusive monopoly rights to make, use, exercise, sell or distribute the invention by his satisfaction and when such rights are violated by others it is called infringement. The rights to sue for the infringement lies on the patentee. A co- owner has also the rights to institute suit for the infringement. An exclusive licensee or assignment may also file suit for the infringement if the license or assignment is registered. A suit for infringement can be instituted only after the patent has been sealed. The court will follow the code of civil procedure, 1908 in conducting a suit for the infringement as far as it is relevant. The period of limitation for bringing a suit for infringement is years from the date of infringement. The onus of establishing infringement is on the plaintiff. A successful plaintiff is entitled to the following relief in a suit for infringement- Damages or an account of profit:
1) he was not aware; or
2) he had reasonable means of making of making himself aware of the existence of the patent.