Encouraging innovation and enforcing IP rights
Enforcement of Trade-Related Intellectual Property Rights (TRIPS), including Intellectual Property (IP) rights, is important for encouraging innovation and creation, technological development, promotion of fair competition and protection of consumer rights. It is, however, observed that the protection and enforcement of IP rights in a least developed country (LDC) like Bangladesh are far behind the desired level.
IP, as defined by the TRIPS Agreement, encompasses: i) copyright and related rights; ii) trademarks; iii) geographical indications; iv) industrial designs; v) patents; vi) layout-designs (topographies) of integrated circuits; vii) plant variety rights; and viii) protection of undisclosed information (trade secrets). IP rule is a part of WTO, set to open up the market and require corrected measure to cope with new open market competition with manufacturers and traders from other countries.
LDCs were granted an extension of the transition period under Article 66.1 of the TRIPS Agreement until 1 July 2013 for protection of trademarks, copyright, patents and other IP rights as contained in the TRIPS Council Decision on 29 November 2005. It has been further extended until 1 July 2021 - or when a particular country ceases to be in the least developed category and if that happens before 2021. Since the newly passed extension is for the full TRIPS agreement, it could be considered to be applicable for all products, including pharmaceutical products.
For pharmaceuticals, the 2001 Doha Ministerial Declaration on TRIPS and Public Health had already instructed the TRIPS Council to extend the period for them to comply with provisions on pharmaceuticals until 2016. By this time, laws and rules should be revised to avail the opportunity.
Bangladesh is lobbying for extension of transition period up to 2021 for pharmaceuticals as well. This is in consideration of its special requirements, economic, financial and administrative constraints, and the need for flexibility so that it is able to create a viable technological base.
Although Article 66.2 of the TRIPS Agreement requests developed country members to provide incentives for technology transfer to enhance the capacity of LDCs, there remain questions about the effectiveness of the provision in the context of Bangladesh.
Developed countries with high technological base and strong intellectual property (IP) regime are progressing faster than developing countries. It is estimated that the industrialised countries hold 97.0 per cent of all patents, and global corporations own 90 per cent of all technology and product patents. The LDCs have a deadline until January 01, 2016 to bring their patent regimes into compliance with TRIPS. LDCs in general and Bangladesh in particular, could not gain much from the knowledge-based world because of insufficient IP infrastructures.
Major industrial sectors in Bangladesh like jute, ready-made garments (RMG) and pharmaceuticals could not grow properly due to absence of need-based and appropriate R&D facilities. At present, the country desperately needs technology transfer agreements with other countries and international organisations, particularly in the field of pharmaceutical products, key manufacturing industries and agriculture.
Technologies used in Bangladesh are mostly imported and the scope of technology transfer is extremely limited. Patent registration at the local level is insignificant. The TRIPS Agreement contains some transitional rules that include a moratorium on non-violation complaints, technology transfer and technical assistance from the developed countries to the least developed countries in order to enable a sound and viable technological capacity building. Pharmaceutical industries approached a number of international pharmaceutical companies for technology transfer for production of some essential medicines in exchange of granting exclusive marketing rights for a certain period. Unfortunately, responses did not match the expectations.
LDCs should develop their own Research & Development (R&D) capabilities and are in dire need of technical and financial support to benefit from global innovation and technological development. Apart from this, grants provided by the government to the public research institutions are not adequate in facilitating R&D and scientists and professionals who work behind these innovation processes are inadequately valued and rewarded.
The private sector in Bangladesh is in a primary stage of financial strength and yet to gain capacity to invest in R&D. The public sector plays a dominant role in research initiatives in some organisations like Science Laboratory, Atomic Energy Commission, Engineering University etc. But the public sector cannot cope with the rising market demand. There is inadequate funding of education and R&D activities by various governments. The universities and R&D institutions currently do not generate much income from internal resources to supplement government funding due to lack of policy supports.
Many universities have researches only for educational thesis and can hardly meet the local demands and R&D institutions have mostly been amateurs in their relations with sponsors of R&D activities. Most universities and R&D institutions do not have intellectual property policies for safeguarding their interests in managing collaborative research activities.
Only a few research organisations, such as the Bangladesh University of Engineering Technology (BUET), the Bangladesh Agricultural Research Institute (BARI) and the Bangladesh Rice Research Institute (BRRI) have technology transfer agreements with some international organisations. The BUET has technology transfer agreements with the Asian Institute of Technology (AIT) of Thailand and some other international research organisations. The BARI has research agreements with Australian research institutions, the International Maize and Wheat Improvement Centre (CIMMYT), the Asian Vegetable Research and Development Centre (AVRDC) etc. The BRRI has a technology transfer agreement with the International Rice Research Institute (IRRI).
There are no policy decision and direction on sensitive issues related to ownership, disclosure and distribution of income, consultancy, research contracts and commercialisation of inventions, innovations and research findings.
Bangladesh needs to develop its own infrastructure and strengthen its financial and administrative capacities to encourage innovation and enforcement of IP rights. It needs to develop an IP policy, formulate or strengthen some of the existing laws to make them TRIPS-consistent, restructure its institutions, and undertake training and awareness-raising programmes among the policy makers, IP enforcing agencies and users. Apart from these, it must preserve its genetic resources, traditional knowledge and folklores with a view to gaining from commercialisation of these resources.
International and local R&D and transfer of technologies involve a rich variety of contracts and transactions, including research contracts, collaborative projects, licensing, joint ventures, alliances, spin-offs and buyer-supplier relationships. Such collaborations can involve complex legal, commercial or management issues, often including related intellectual property rights.
The overseas technology-rich companies and other research organisations are not comfortable with their Bangladesh counterparts due to weak legal and policy support. Even the existing laws are not properly enforceable by the authorities.
The links between R&D institutions and industry in most LDCs are weak compared to those encountered in developed countries and even in some Asian and Latin American countries. Consequently, the flow of income to universities through consultancy, research contracts and the commercialisation of inventions, innovations and research findings is very low.
Intellectual property policy should bring harmony to the conflicting interests of all the stakeholders in generation and commercialisation of a patent. The commercial results, financial or others, should be distributed in a fair and equitable manner that recognises the contributions of the inventors and the institution as well as those of any other stakeholders.
The policy guidelines are to be set for determining the rights and obligations of a university or R&D institution, the creators of intellectual property and their sponsors, with respect to inventions, discoveries and works created at the institution.
In case a university or R&D institution is a joint inventor with one or more individuals from other institutions or business entities and where income is shared between the participating entities, the patents are normally jointly owned by the participating institutions, and the rights to use the invention and the distribution of royalties among the institutions, is generally negotiated after confidential disclosure of the invention, but before registration of patent. But unfortunately Bangladesh has not been able to develop an appropriate IP regime.
There are a few noteworthy researches in private sector. Recently, Bangladesh, and Shenzhen, China- Lal Teer Livestock Limited, an associate of Lal Teer Seed Ltd. with strong hybrid research programme, and BGI, the world's largest genomics organisation, jointly announced that they have completed the genome sequencing of water buffalo and the bioinformatics analysis. This private sector-led research is a landmark achievement. Bangladeshi scientist Maqsudul Alam, a professor of the University of Hawaii decoded the genome of papaya in the US, rubber plant in Malaysia and jute in Bangladesh.
Bangladesh has potential for innovation and creation and international co-operation. It can improve legal atmosphere and enforcement of law to bring the technology through investment and co-operation.
Writer: Mr. M S Siddiqui