SINCE the protection of intellectual property is limited to the territory of the state in which it is granted, the inventor has to seek patent protection for his invention in different territories. Having felt the need to protect the invention through a single registration system having a global effect, the World Intellectual Property Organisation developed a global patent system known as the Patent Cooperation Treaty in 1978, cooperating currently with 150 counties.
The principle objective of the treaty is to provide a more effective and financially viable means for patent protection in several countries with a single patent application. Under the treaty, the inventor has to file a single application (known as an international application) in one language having effect in each of the country party to the treaty by indicating the names of the countries where protection is desired. This system also provides formal examination of the international application by a single office and also international search on the prior art. The national patent offices are, however, free to examine the application from the perspective of national legislation and charge fees for it.
Further, the Patent Cooperation Treaty system is advantageous both to the applicants and the patent offices of the treaty member countries as there is certain uniformity in the procedural requirements, the international search and preliminary examination reports and the centralised international publication provided by the treaty system.
With regard to the applicant, this system is very cost-effective and less time consuming. The applicant requires to file a single application with a prescribed fee (reduced 90 per cent for LDCs) while the traditional patent system requires the filing of individual patent application in each country where patent protection is sought which involves not only preparation and the filing of patent applications in several countries in different languages in different systems but also adds cost in terms of payment of fees to the patent offices, expenses on translation, fees to attorneys, etc. Besides, it increases the predictability of patent by allowing the applicant to make an objective assessment as to patentability of his invention at an earlier stage. Thus, this system simplifies and renders more financial protection of inventions through a harmonised system.
In respect of the national patent offices, this system reduces the workload of the patent office and saves their valuable time. They can employ their available human resources to handle more patent applications since those applications coming via the Patent Cooperation Treaty have already been verified with regard to compliance with formal requirements during the international phase. They can also extend their activities by providing technical advisory services to local industry either in terms of advising on available technologies or in connection with research and development activities. Besides, the patent office can save the cost of publishing as the international application has been published in an official language of the country, they can forgo publication. Furthermore, this system does not affect the revenue of designated offices unless they decide voluntarily to give a rebate on national fees.
In respect of overall economic and technological development, the cost-effective protection to inventions stimulates further innovations and encourages transfer of technology which will ultimately boost up the national economy. Since an effective protection of intellectual property certainly helps in garnering more foreign direct investment, especially in some critical areas of technology such as pharmaceuticals, etc, the developing countries and the least developed countries may attract foreign direct investment to vital industrial sectors though this system. Thus, the Patent Cooperation Treaty may serve as an indispensable part of the country’s strategy to foster its growing economy and to promote the rise of its technological level.
However, there are a number of disadvantages of this system especially for developing and the least developed countries. It is widely recognised that, historically, developed countries have comparative advantage in technological inventions. These countries often seek maximum protection for their inventions in other states through a cost-effective way. Furthermore, the inherent monopolistic nature of the patent coupled with this uniform system may have an adverse effect on the developing and LDCs that lack technological inventions capable of patent protection. Therefore, the harmonisation process will reduce the flexibility of the government of these states to use the patent as a tool to devise economic and industrial policies suiting to their level of industrial development.
Besides, this system does not offer protection to utility models or design patents which may lead to the exclusion of second-tier inventions of most of the developing countries. Finally, this system tends to give maximum protection to foreign inventions without requiring the mandatory transfer of such technology. It only confers an option of technology transfer through licensing agreements in other countries, but that does not create any binding obligation on the patent owners.
Given the welfare and downsides, there are a number of benefits that Bangladesh may attract as soon as it signs the Patent Cooperation Treaty. For example, in case of international patent application fees, a Bangladeshi as an LDC country applicant whether a natural person or artificial will get 90 per cent reduction in the standard fees for such application. Besides, the country can negotiate for the WIPO Development Agenda that contains 45 immediately implementable recommendations. These recommendations include providing additional assistance to WIPO through donor funding, establishing trust-in-funds or other voluntary funds within the WIPO specifically for LDCs and mandating technology transfer to promote the transfer and dissemination of technology and to take appropriate measures to enable them to fully understand and benefit from different provisions. By acceding to the Patent Cooperation Treaty, Bangladesh can draw on these recommendations which will ensure its access to technology.
Furthermore, the signing of the Patent Cooperation Treaty may attract the commitment of the developed countries’ towards Bangladesh as pledged in the TRIPS Agreement. Article 67 of the TRIPS requires developed country members to provide, technical and financial cooperation in favour of developing and LDC members. The article specifies that such assistance includes assistance in the support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel. Besides, Article 66(2) enjoins the developed country members to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed country members in order to enable them to create a sound and viable technological base.
Thus, the Patent Cooperation Treaty can be a useful means for Bangladesh to ingress into the international cooperation and simplification in the process of innovation and transfer of technology for its minimum cost and potential advantages that may be availed from the international community.
Dr Mohammad Towhidul Islam teachers law in University of Dhaka.